Ronald Reid and Repatriation Commission
[2014] AATA 548
[2014] AATA 548
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2013/4239 |
| Re | Ronald Reid |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | RM Creyke, Senior Member |
| Date | 8 August 2014 |
| Place | Canberra |
The decision under review is affirmed.
.....................[sgd[...................................................
RM Creyke, Senior Member
Catchwords
Veteran’s Affairs – disability pension – whether hypertension is a war-caused or defence- caused disease – whether there is a causal link between operational service/defence service and alcohol habit and obesity – whether there was a culture of drinking in the Royal Australian Air Force - whether required or reasonably required to drink alcohol – whether induced/expected to drink alcohol – which Statements of Principles were most beneficial for veteran
Legislation
Veterans’ Entitlements Act 1986 (Cth) (Act) ss 5Q, 6, 6E, 6A-6F, 9 13, 68, 70, 120, 120A, 120B, 196, Part IV
Statement of Principles No 35/2003
Statement of Principles No 36/2003
Statement of Principles No 63/2013
Statement of Principles No 64/2013
Cases
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Roncevich v Repatriation Commission (2005) 222 CLR 11
Repatriation Commission v Tuite (1993) 29 ALD 609
Walsh v Rother District Council (1978) 1 All ER 510
Repatriation Commission v Law (1980) 31 ALR 140
Wedderspoon v Minister of Pensions (1947) KB 562 at 564
Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525
Military Rehabilitation Commission v Roberts (2007) 238 ALR 637
Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511
Kennedy v Telstra Corporation Ltd (1995) 61 FCR 160
Schmid v Comcare (2003) 77 ALD 782
Secondary Materials
REASONS FOR DECISION
RM Creyke, Senior Member
Mr Ronald Reid applied on 12 December 2011 to have his hypertension accepted as either war-caused or defence-caused.
The claim was refused by the Repatriation Commission (Commission) on 5 July 2012, a decision upheld on review by the Veterans’ Review Board on 9 May 2013.
Mr Reid sought further review by the Tribunal on 26 August 2013. The Tribunal is satisfied that it has jurisdiction to hear the matter. A hearing was held in Canberra on 23 April 2014, and was resumed and finalised on 10 June 2014.
Background
Mr Reid served in the Royal Australian Air Force (RAAF) between 15 February 1966 and 22 December 1993. His service included twelve months in Vietnam from March 1968 and 1969. He has operational service for that period. His prior and subsequent service until 1993 is defence service. Mr Reid enlisted and served as a clerk.
Mr Reid has claimed a disability pension in respect of hypertension.
On 14 February 2014, the parties agreed the facts in this matter are as follows:
i.Mr Reid was born on 19 May 1948.
Mr Reid joined the Royal Australian Air Force (RAAF) on 15 February 1966 and had ‘operational service’[1] with the RAAF in Vietnam from 19 March 1968 to 19 March 1969 and ‘defence service’[2] with the RAAF from 7 December 1972 to 22 December 1993.
[1] Veterans’ Entitlements Act 1986 (Cth) (Act) ss 6, 6E.
[2] Ibid Part IV.
On 12 December 2011, Mr Reid lodged a claim for hypertension, listing obesity as a cause of the hypertension from as early as 1968, with a specific diagnosis of hypertension in 1983. In his application for review by the Veterans’ Review Board, Mr Reid claimed that alcohol consumption was a cause of his obesity and a direct cause of the hypertension.
The current Statement of Principles (SoPs) for operational service for hypertension is Instrument 63 of 2013. The relevant factors in 63/2013 are:
a.Being overweight or obese at the time of clinical onset of hypertension;
b.Consuming an average of at least 300 grams per week of alcohol per week.
SoP 64/2013 applies to defence service and is in the same terms save that the 300 grams is 500 grams.
The SoPs in force at the time Mr Reid lodged his claim are Instruments 35 of 2003 as amended by Instruments 3 of 2004 and 11 of 2008 (operational service) and 36 of 2003 as amended by Instruments 4 of 2004 and 12 of 2008. The relevant factors are the same, at least following the 2008 amendments.
On 5 July 2012 the Commission denied Mr Reid’s claim for hypertension .
On 13 November 2012 Mr Reid lodged an application for review with the Veterans’ Review Board (VRB). On 9 May 2013 the VRB affirmed the rejection of the claim for hypertension.
On 26 August 2013 Mr Reid lodged an appeal with the Administrative Appeals Tribunal (AAT).
During Mr Reid’s period of service there existed several sub-cultures in the RAAF. One of these sub-cultures encouraged or induced habitual drinking to levels that are now considered excessive. There is evidence to this effect from two witnesses, Warrant Officer Mapstone and Squadron Leader Walter Hopkinson.
It was accepted that no service person was ‘required’ to drink. In other words it was not a compulsory activity.
Mr Reid developed an alcohol habit during service, after being exposed to a drinking culture.
The first recorded date of hypertension (blood pressure of 140/90) is dated 1 March 1978 when his blood pressure is recorded at 150/80.
At that time, Mr Reid was consuming at least 300 grams of alcohol a week.
Mr Reid was obese during service with a date of onset in 1983.
The obesity was caused in part by excess caloric consumption, including calories contained in his alcohol consumption. At that time, Mr Reid was consuming at least 300 grams of alcohol a week.
Mr Reid did not suffer from either alcohol abuse or alcohol dependence at the time of the clinical onset of either hypertension or obesity.
At the hearing the representative of the Commission, who was not the representative when the facts were agreed, said the Commission was not prepared to accept all the agreed facts, in particular, clause (x).
Following his recruit course in RAAF Edinburgh, South Australia, over the course of his 27 years in the service, Mr Reid had 20 postings, mostly in Canberra, but two were overseas, namely, in Vietnam between 1968 and 1969 and in Hong Kong, between 1972 and 1974. Thirteen of those postings were prior to 1983. In his postings until 1972 Mr Reid was housed in singles quarters, often on base. He married in early 1972. Thereafter he was in married quarters, usually off base.
The Commission helpfully supplied a document concerning Mr Reid’s obesity history. That document follows. The reason for being overweight and the treatment columns which showed ‘Not known’ for each of the entries for ‘reason for being overweight’, and treatment prescribed, which listed Diet/Watch weight or Diet/Exercise for each entry, were not included. Mr Reid was located at Canberra in 1983, 1988, 1991 and 1992. He was in Saigon in 1968, in Hong Kong in 1974 and Darwin in 1993.
Date
Height
Weight
BMI
18.1.66
67.75 inches
177 lbs
27.11
16.2.68
69 inches
190 lbs
28.06
21.9.68
-
196.1lbs
28.94
30.8.71
173cm
81kg
27.06
26.3.74
69 ins
201 lbs
31.01
13.9.83
174cm
92.8kg
30.65
26.5.88
174cm
106kg
35.01
29.5.91
175cm
103.7kg
33.86
2.12.91
175cm
98.5kg
32.16
24.8.92
176cm
104kg
33.57
20.7.93
177cm
100kg
31.92
20.12.93
175cm
104kg
33.96
10. Mr Reid’s evidence in his Alcohol Questionnaire dated 29 May 2012 stated that he commenced drinking alcohol on enlistment in February 1966, listing ‘beer, wine and spirits (wine and spirits later in service life)’. He said he drank ’40 standard beers per week’. A standard drink was described in the questionnaire as ‘10gms of alcohol, approximating to a 10oz (285ml) glass of full strength beer, a standard glass of wine, a “nip” of spirits or a standard measure of fortified wine’. He stated that service contributed to his drinking due to: ‘culture of drinking; compulsory nature of bonding with peers; happy hours; and functions associated with service clubs/messes life’, as well as ‘self-medication to relieve stresses associated with service life, active service, courses, etc’.
11. Mr Reid completed the Alcohol Questionnaire on 15 February 2012. He said he wanted it to be accurate so he took care over it. In particular, he noted the description, listed in the questionnaire of what was a ‘standard drink’. Mr Reid listed his alcohol consumption as follows:
· May 1966: 60 standard beer drinks per week (after posting to unit following recruit course)
· March 1968: 89 standard beer drinks per week (on first being posted to Vietnam)
· March 1969: 100 standard beer drinks per week (on return to Australia after Vietnam)
· July 1971 - 1993: 110 standard beers, 6 standard spirits, 6 standard wines, per week (on being promoted to sergeants’ mess).
12. Mr Reid’s evidence was that he did not drink prior to 1966 when he enlisted. He was then 17.75 years of age. Recruits were not permitted to drink in their first few months. Thereafter, he said he commenced drinking. He said in March 1968 while in Vietnam he was mostly drinking beer, but on occasion he drank whisky or rum. He drank every day of the week. As he pointed out, after work, he could not go outside for safety reasons and he had access to bar facilities in the mess run by the Americans which was open twenty-four hours a day.
13. Mr Reid’s evidence was that he drank because alcohol was available, and although when he arrived, he was suffering some anxiety, and he said drinking would shut out the noise of firing in the area, but it was not that which affected his drinking. Rather, drinking was part of the day-to-day routine and because there was nothing else to do except have a meal and use the bar facilities. The alcohol was full-strength American beer and all alcohol was subsidised.
14. Further, Mr Reid said that, when working in Russell Offices, Canberra between 1969 and 1971 the messes, which served both snacks and alcohol, were open at lunchtimes and after work until 6.00pm. The evidence was that it was considerably cheaper to drink at these locations than in a hotel. Mr Reid said he would routinely drink at lunchtimes, and then have 3-4 drinks before leaving work. As he said most defence people used this facility for drinking and it was the social club for people who were single. The presidents of the mess facilities encouraged them to participate in mess activities after work. He said in the evening he would start with a schooner and then drop to a midi, and on one or two nights a week he also had whisky or Bacardi.
15. After marrying early in 1972 he was posted to Williamtown. Initially he was living on base where the situation concerning availability of alcohol was akin to Russell Offices. After about three months he moved into married quarters and would probably have slightly fewer drinks after work before going home, but at home he and his wife would also drink. Having access to the bar at lunchtimes did not cease until the mid-1980s and 6.00pm bar closing, not until the early 1980s.
16. In Hong Kong the practice was similar. Mr Reid would regularly drink at lunchtime (4 schooners) but he went home in the evenings, where he would have 4-5 beers, more on weekends. In addition, defence personnel were accommodated in the same apartment block and people would socialise together and drink in the evenings.
17. During his postings he would always attend mess nights which, depending on the size of the base, could take place every two, three, or six months. At mess nights, he would drink wine, beer, spirits and port as well. The pattern of drinking daily at home continued in his subsequent postings. Mr Reid said after his children were born in 1972 and 1975 respectively he might have cut down his consumption a little, but this meant perhaps three drinks after work instead of four or five.
18. It was not until his discharge in 1993 that Mr Reid said he understood that it was his alcohol consumption that was connected with his hypertension. He was advised by his doctor on discharge that his hypertension could kill him and the doctor was surprised that Mr Reid did not have a liver disease. Prior to then Mr Reid said he had not been counselled about his drinking, nor did he associate drinking with his weight gain. He said he thought it was his eating habits, including the bar snacks, hamburgers and pizzas, which had led to his weight gain, not his alcohol consumption. Since 1993 he says he rarely has a drink in the day because he said he has no-one with whom to socialise. However, he still drinks in the evening.
19. The service medical clinical notes indicate that on 21 September 1968, after Mr Reid had been in Vietnam for about six months, his weight was increasing rapidly and he had to let his belt out 2 inches. His daily diet was listed on that occasion as water only for breakfast, soup at 10am, two sandwiches or hamburgers and a glass of orange juice at 12.30, a soft drink at 3pm, a meal including bread and butter at 6.00p , no supper but ‘5-6 whisky and ginger drinks nightly’.
20. A family history of hypertension was noted in 1991 in a Defence Employment Standard Review. That review also stated that in June 1991 Mr Reid was obese with a BMI of 33.8, and that ‘his weight has hovered around 100kg for the last 10 years and he has been counselled in the past re activity and diet’.
21. Dr Sylvia The, Mr Reid’s general practitioner, certified on 25 October 2013 that, based on the history he provided, Mr Reid had suffered from alcohol dependence throughout the period of his service starting from the time of his enlistment.
22. The Tribunal had evidence of two relevant Defence Instructions. These were Defence Instructions (General) (DI(G) PERS 15-1, dated 24 October 1980, and Defence Instructions (Air Force) (DI(AF) PERS 14-1, dated 21 August 1992. There is a reference in DI(G) PERS 15-1 to a single service instruction for the RAAF at that time, namely, DI(AF) PERS 4-14. This was not provided to the Tribunal. The Tribunal has assumed from the reference that this too, was dated on or before 1980.
23. These documents set out Defence policy on the use and abuse of alcohol. Both documents refer to the fact that consumption of alcohol to a moderate level is a socially acceptable practice. The instructions noted, however, that abuse of alcohol had adverse consequences both generally and particularly in the Defence Force. No evidence was provided of any policies on this topic earlier than these two instructions, other than the single service Instruction for the RAAF referred to in DI(G) PERS 15-1.
24. Service clinical records for Mr Reid first recorded a blood pressure reading at levels of 150/80 on 1 March 1978, 150/80 on 8 July 1982, of 145/110 on 26 January 1983. His blood pressure readings in January & February 1983 showed 145/100 on 27 January, 140/90 on 28 January 1983, 140/100 on 1 February 1983, 135/95 on 2 February 1983 and 135/90 on 3 February 1983. He was prescribed medication for his blood pressure daily on 3, 10 and 24 February 1983. In other words, the evidence is of a sustained period of high blood pressure in the first quarter of 1983 prior to the date of clinical onset.
25. The service records indicate that Mr Reid’s being overweight was noted in August 1968 in an RAAF In/Outpatient Reference sheet. In September 1968 he was 14 stone 11 lbs (94 kg) and was advised to lose weight and also to take exercise as he was ‘overweight’. By 1982 he was recorded as weighing 101.8kg and the clinical notes indicate he was undergoing diet control and an exercise program. He heeded this injunction, since, by January 1983, his weight was down to 95.3kg.
26. On discharge in 1993, Mr Reid was considered to be obese. By then his weight was 100kg and his BMI (Body Mass Index) was 31.9. The outpatient clinical records indicate he was ‘to start a walking programme and encouraged to cease smoking’. Goals for weight loss were set in July 1993.
Legislation
27. The relevant provisions are found in the Veterans’ Entitlements Act 1986 (Cth) (Act). Section 13 provides for compensation for an injury or disease that is war-caused. Section 9 defines what is a ‘war-caused injury or a disease’. Section 70 (5)(a) defines what is a defence caused disease. Sections 5Q(1B) and (1C) define when a disease or an aggravation of a disease ‘relates to service’. The relevant standards of proof are provided for in section 120(1) for operational service, and section 120(4) for defence service. Section 196B provides for the Repatriation Medical Authority to make Statements of Principles for the purposes of the standards of proof.
28. There are relevant Statements of Principles relating to the claims for hypertension and alcohol abuse or dependence. The most recent Statement of Principles for Hypertension are No 63/2013 (section 120A), and No 64/2013 (section 120B). These SoPs revoked earlier SoPs on hypertension. The Statements of Principles for hypertension at the time of the application in November 2011 were No 35/2003 (section 120A) and No 36/2003 (section 120B).
Issues
29. The principal issue is whether Mr Reid’s hypertension is either a war-caused disease or a defence-caused disease. Specifically the issues agreed by both parties are:
· Notwithstanding satisfaction of the relevant Statement of Principles No 35/2003 is the Tribunal satisfied beyond reasonable doubt that there is no causal link between Mr Reid’s operational service and his alcohol habit and obesity (Act sections 120(1), 120(A)); or
· Notwithstanding satisfaction of the Statement of Principles No 36/22003, is the Tribunal satisfied on the balance of probabilities that there is no causal link between Mr Reid’s defence service and his alcohol habit and obesity (Act sections 120(4), 120B).
30. In addition, did the Veterans’ Review Board err in law when it rejected the test for establishing a causal link between Mr Reid’s hypertension and his service as the existence of an alcohol culture and its effect on Mr Reid? Specifically the issues relating to this matter are whether in order to establish the causal link, the Tribunal must be satisfied that:
· Mr Reid was ‘required to drink’ alcohol; or
· Mr Reid was ‘reasonably required to drink’ alcohol.
Consideration
31. Where a veteran is incapacitated from a war-caused disease or a defence-caused disease, the Commonwealth is liable to compensate the veteran.[3] There is no dispute that Mr Reid is a veteran. A disease contracted by a veteran is war-caused or defence caused if it ‘arose out of, or was attributable to’ eligible war service or defence service.[4] Mr Reid had operational service in Vietnam (1968-69) which is eligible war service,[5] and his subsequent service until 1993 is defence service.[6] There is no dispute that Mr Reid has rendered eligible war service, nor that he has defence service. The issue of a casual link is dealt with later in these reasons.
[3] Veterans’ Entitlements Act 1986 (Cth) ss 13(10(b), 70(1)(b).
[4] Ibid ss 9(1)(b), 70(5)(a).
[5] Ibid ss 6A-6F.
[6] Ibid s 68.
32. There is also no dispute on the evidence that Mr Reid had a diagnosed condition of hypertension which it was agreed according to medical certification was established by September 1983.
33. The standards of proof to be applied to Mr Reid’s claim are the reasonable hypothesis standard in section 120(1), (3) and the reasonable satisfaction standard in s 120(4). As Statements of Principles have been made in relation to hypertension, this means whether the standards of proof in 120(1), (3), and (4) are met is to be assessed in accordance with factors relating to service contained in the relevant Statements of Principles.[7]
[7] Ibid ss 120A, 120B.
Standards of proof
34. For the purpose of deciding whether a disease of a veteran relates to operational service, section 120(1) provides that ‘the Commission shall determine that the … disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination’.[8]
[8] Ibid s 120(1).
35. Further:
In applying subsection (1) in respect of the incapacity of a person from …. disease, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: … (b) that the disease was a war-caused disease or a defence-caused disease … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person.[9]
[9] Veterans’ Entitlements Act 1986 (Cth) s 120(3).
36. Since the introduction of the Statements of Principles scheme, the courts have accepted that the process for analysis required by the relevant provisions involves a four step process (the Deledio process[10]).
[10] Deledio v Repatriation Commission (1997) 47 ALD 261 at 263.
37. The first step requires there to be material which points to or supports the hypothesis suggested by Mr Reid.[11] The hypothesis presented by Mr Reid is that his hypertension was contributed to by his drinking which commenced on enlistment and continued and increased during service, including in Vietnam, that his drinking contributed to his obesity, and that both his heavy alcohol consumption and his obesity are due to service.
[11] East v Repatriation Commission (1987) 16 FCR 517.
38. There is no dispute that the evidence points to Mr Reid’s alcohol consumption beginning and increasing on service, based on his alcohol questionnaire and the evidence of his witnesses. There is also material to indicate that Mr Reid was overweight on service. The medical records indicate he was overweight throughout service and that he was counselled at various times to take more exercise and to reduce his weight. The Tribunal is satisfied that there is material which points to the hypothesis raised by Mr Reid concerning his level of alcohol consumption and his being overweight during service.
39. The second step is to identify whether there is a Statement of Principles which relates to Mr Reid’s hypothesis. Again there is no dispute that there are Statements of Principles for hypertension, namely, No 35 of 2003 (section 120A) and No 36 of 2003 (section 120B), and No 63/2013 (section 120A) and No 64/2013 (section 120B). The Statements of Principles correspond with the two standards of proof which are relevant to this matter: the first applying to eligible war service; and the second to defence service. In addition, the Statements of Principles include as factors leading to hypertension levels of alcohol consumption and being obese.
40. The next step is to decide whether the hypothesis is a reasonable one, that is, is consistent with the template found in the relevant Statements of Principles. The purpose of Statements of Principles is to established whether there is sound medical-scientific evidence that a disease can be related to operational service,[12] or that it is more probable than not that the disease can be related to defence service’.[13]
[12] Act s 196B(2).
[13] Act s 196B(3).
41. Mr Reid bases his claim that his hypothesis is reasonable on the ground that his disease of hypertension is related to factors which are listed in the Statements of Principles, namely, his obesity and his alcohol consumption. It is an agreed fact that his obesity is in part due to calorific consumption, including calories due to consumption of alcohol. It is also based on the hypothesis that his claimed disease, namely, hypertension, meets the definition of hypertension in the relevant Statements of Principles.
Hypertension
42. All the Statements of Principles define ‘”hypertension” as ‘persistently elevated blood pressure, diagnosed by a medical practitioner and evidenced by: (i) a usual clinical blood pressure reading of greater than or equal to 140 mmHG systolic or greater than or equal to 90mmHG diastolic, or equivalent levels’.
43. The hypothesis was that Mr Reid was suffering from hypertension. There is sufficient material pointing to the fact that Mr Reid is suffering from hypertension. It was common ground, based on the certification by Mr Reid’s general practitioner, Dr Jo Crookes, in the medical report for the purposes of this claim that Mr Reid’s date of clinical onset of his hypertension was 13 September 1983 when his blood pressure reading was 150/100.
44. The Tribunal’s opinion, accordingly, is that Mr Reid’s hypertension meets the terms of the definition of hypertension in the relevant Statements of Principles, and is consistent with the material before the Tribunal.
45. The factors in the Statements of Principles on which Mr Reid relies to establish that this hypothesis is reasonable are his level of consumption of alcohol on service, and his obesity.
Alcohol consumption
46. The Statements of Principles on hypertension in force when Mr Reid applied for acceptance of his condition of hypertension were No 35 of 2003 and No 36 of 2003. The factor in those Statements of Principles relating to alcohol consumption were ‘consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical worsening of hypertension’ (No 35/2003 clause 5(b)); and ‘consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension’ (No 36/2003 clause 6(b)).
47. The later Statements of Principles provide that the veteran must show that he was ‘consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension’ (No 63/2013 clause 6(b); No 64/2013 clause 6(b)). In all Statements of Principles, the definition of ‘alcohol’ is said to be ‘measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink’ (eg No 35/2003 clause 8).
48. Whether the earlier or the current Statements of Principles on hypertension should apply depends on which is the most beneficial Statement of Principles for Mr Reid.[14] The agreed statement of facts is that on the date of clinical onset of hypertension in 1983, Mr Reid ‘was consuming at least 300 grams of alcohol a week’, and from Mr Reid’s alcohol questionnaire that he was already consuming 600 grams of alcohol a week prior to leaving for Vietnam and that is consumption increased thereafter.
[14] Repatriation Commission v Gorton (2001) 110 FCR 321; Repatriation Commission v Keeley (2000) 98 FCR 108.
49. The evidence is that prior to his enlistment, Mr Reid had not consumed alcohol. The Tribunal takes official notice of the fact that the legal age for drinking alcohol is 18 today but that in 1966, in the majority of states it remained at 21 and Mr Reid was not yet 18 on enlistment. This supports Mr Reid’s claim that he had not drunk alcohol prior to service. However, drinking alcohol on base was permitted for members of the forces under the civilian drinking age, even in 1966.
50. There is some dispute about his drinking pattern. Mr Reid claimed in his alcohol questionnaire to have been drinking only beer on enlistment, and his consumption of wine and spirits did not commence until later in his service. However, his service medical records note he was drinking ‘5-6 whisky-gingers’ nightly in 1968. Mr Reid’s drinking continued throughout his service. In a medical in 1991, there is a notation beside the ‘alcohol’ entry of ‘5-3-2’, which it was suggested by the representative of the Commission was 5 beers, 3 spirits and 2 wines. If that explanation is accepted, his varied drinking pattern was established by then.
51. In the alcohol questionnaire in 2012 Mr Reid listed his consumption levels as shown in the following table.
Year Standard drinks per week Total alc/wk(in gms)
| 1966 | 60 std beers | 600 gms | ||
| 1968 | 89 std beers | 890 gms | ||
| 1969 | 100 std beers | 1000 gms | ||
| 1971-1993 | 110 std beers | 6 std spirits | 6 std wines | 1220 gms |
52. Mr Reid’s evidence is that he did not reduce his level of consumption on his return to Australia, at least until he married and had children. Even then his consumption diminished only marginally. This information indicates that his alcohol consumption was well in excess of even the higher level required by the later Statements of Principles.
53. However, the factor in Statement of Principles No 35/2003 and No 36/2003 contain the proviso that the consumption ‘cannot be decreased to less than an average of 200 grams per week at the time of the clinical worsening of hypertension’ (clause 5(b), or ‘300 grams per week’ for No 36/2003. There was no material before the Tribunal to indicate whether Mr Reid was able to reduce his level of consumption to the required levels. In those circumstances, the later Statements of Principles, which contain no such proviso, are more beneficial to Mr Reid. In the later Statements of Principles, the only additional criterion is that the level of consumption should have continued for at least six months prior to the onset of hypertension, that is, September 1983. The Tribunal is satisfied on the evidence that this criterion is met for the alcohol consumption factor in both Statements of Principles No 63/2013 and No 64/2014. Accordingly, it is these Statements of Principles which are most beneficial to Mr Reid.
54. Mr Reid’s level of consumption as at September 1983 exceeds the minimum level of alcohol consumption in the factors in both Statements of Principles and had been at that level in the six months prior to September 1983, the date of onset of hypertension. The Tribunal finds on the material that the factors relating to Mr Reid’s alcohol consumption are consistent with the templates in Statements of Principles No 63/2013 and No 64/2013 and are reasonable.
Obesity
55. Mr Reid’s obesity is the second factor on which he bases his claim.
56. Both Statements of Principles No 63/2013 and No 64/2014 defined ‘being overweight or obese’ as ‘an increase in body weight by way of fat accumulation which results in … (a) a Body Mass Index (BMI) of 25 or greater’. The Statements of Principles No 35/2003 and No 36/2003 define ‘being obese’ as ‘an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater’.
57. If a BMI of 25 applied, the evidence provided and tabulated in paragraph 9 of these reasons is that Mr Reid’s BMI met the factor in the Statements of Principles from the time of his enlistment and is accordingly reasonable. If a BMI of 30 is adopted, the material indicates that Mr Reid’s weight met the relevant obesity factor during his service from at least 1974 and remained so throughout the balance of his service. The agreed facts are that he was obese in 1983. Accordingly, the hypothesis that Mr Reid’s met the relevant obesity levels in the Statements of Principles as at September 1983 is consistent with the templates and is reasonable.
Causal link to service
58. The final step in the process is for the Tribunal to consider whether it is satisfied either beyond reasonable doubt or on the balance of probabilities that Mr Reid’s hypertension was not war-caused or not defence-caused respectively. It is only at this point that the Tribunal is required to find facts from the material before it and to establish the causal link with service. In particular, this raises the issue of whether, notwithstanding the finding that Mr Reid’s alcohol consumption and his obesity are consistent with the relevant Statements of Principles, the Tribunal can be satisfied either beyond reasonable doubt, or on the balance of probabilities that there is no causal link between Mr Reid’s service and his alcohol habit and his obesity. The issue is whether those factors can be said to ‘relate to service’.
59. In deciding whether the disease ‘can be related to’ service counsel for Mr Reid relied on the definitions of ‘relates to service’ which states:
For the purposes of this Act, a…. disease relates to service rendered by a person if: …
(b) it arose out of, or was attributable to that service; or …
(e) in the case of a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon … having rendered that service.[15]
[15] Act s 5Q(1B).
60. That provision is linked to section 9(1) and (2) of the Act. Section 9(1) provides that a disease of a veteran is war-caused if … ‘(b) the … disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran’. Section 9(2) provides that if a veteran is suffering an incapacity from a disease which would not have been contracted -
…but for having rendered eligible war service, or but for changes in the veteran’s environment consequent upon … having rendered eligible war service’ then ‘the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
61. Section 70(5) of the Act requires a similar causal test to section 9(1) for those on defence service, while section 70(7) parallels section 9(2), as relevant.
62. In Roncevich v Repatriation Commission the majority in the High Court, in discussing the test in section 70(5) held that:
63. Whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however, be a causal and not merely a temporal one.[16](emphasis added)
[16] Roncevich v Repatriation Commission (2005) 222 CLR 11 at [23].
64. Mr Reid claims that there was a culture of drinking on service, which was encouraged by superiors and was based on the need to bond with peers, and the existence of happy hours. He said it was this culture which habituated him to drinking, led to his obesity and contributed causally to his hypertension. The Commission denied that such a culture existed.
65. Mr Reid served in a clerical capacity, performing administrative duties, whether in Australia or in postings abroad. The evidence was that he had commenced a pattern of heavy drinking, that is, some 60 grams of alcohol a week according to his alcohol questionnaire, prior to his time in Vietnam and that this level continued and increased until his discharge in 1993.
66. When he was in Vietnam, Mr Reid’s evidence was that his workplace was at headquarters. He was not involved in active duty nor sent out on patrols. Although he said in evidence that he had some anxiety when he first arrived in Saigon, and that drinking in the evening drowned out the sounds of fighting in the vicinity, and that his drinking was for ‘self-medication to relieve stresses associated with service life, active service, courses, etc ’, his evidence to the Tribunal does not support that contention. Rather he drank because, as he also said, alcohol was freely and cheaply available and drinking was part of the day-to-day routine.
67. In other words, service was the setting in which his drinking commenced, and the circumstances in Vietnam were not causal of his pattern of drinking. The connection between his posting to Vietnam and his drinking was temporal rather than causal and service was not a contributing a cause, but the setting in which his drinking occurred.[17] However before reaching a final conclusion on this issue, other contentions were raised which need to be addressed.
[17] Repatriation Commission v Tuite (1993) 29 ALD 609.
Required/expected to drink?
68. Mr Reid’s evidence was that his superiors or the President of the club or mess strongly encouraged members of the forces to socialise together and that this was an important method of achieving the bonding essential for effective service. Although at one point he suggested that this encouragement amounted to a direction, he resiled from that position. So it is not established that service personnel were required to drink. The Tribunal also notes Mr Reid’s evidence that in the mid-1980s, restrictions were placed on drinking at lunchtime in the mess areas and messes ceased to serve alcohol at lunchtimes.
69. In addition, the Tribunal notes that there were Defence instructions, whether general or single service, in place by 1980, which condoned consumption of alcohol but only to a ‘moderate’ level, and warned about the adverse effects of excess alcohol consumption. Mr Reid’s evidence was that although, as a clerical officer, he may have received and been required to circulate those Instructions, he was not aware of their content. That failure to absorb the content of the Directions does not mean Mr Reid’s ignorance should be excused.
70. The existence of the Directions, however, indicates that even in the 1980s Defence officers and other senior personnel, such as Presidents of clubs or messes, would not have been instructing junior service persons to drink to excess. That was particularly true for pilots and other crew in the RAAF where the ‘bottle to throttle’ rule, that is, no drinking within 8 hours of flying, applied. So even though he was not in the flight arm of the RAAF, Mr Reid would have been aware of the impact of alcohol on performance.
71. In addition, since on Mr Reid’s evidence about 20 per cent of service personnel did not drink, there could have been no injunction to drink, much less to excess. Nor was there evidence that drinking was expected. Consuming drinks in company with other personnel may have been encouraged, but those drinks did not have to be alcoholic and even if alcoholic, taken to excess. The Tribunal accordingly rejects any suggestion that Mr Reid would have been required or expected to drink alcohol, much less, to excess.
Induced or encouraged/reasonably induced or encouraged to drink?
72. Whether he was induced or encouraged, or reasonably induced or encouraged, to drink excessive amounts of alcohol was also raised as an issue. The evidence establishes that Mr Reid was encouraged to socialise both overtly, by his superiors, and by Presidents of clubs and messes. That inducement or encouragement was also more subtly conveyed. In the first instance, there was the fact that members of the forces could drink alcohol on base at ages below the legal age in the civilian population. In addition, the ready and cheap availability of alcohol at lower prices than in civilian venues, coupled with the supply of snacks and bar food, would have been understandably attractive, particularly for single members of the forces. These could be said to be an inducement to consume alcohol.
73. The Tribunal, however, is also not satisfied that it was an inducement or encouragement to drink excessive amounts. Mr Reid said his drinking did not affect his performance, nor his promotional path and that he progressed through the ranks to the level of Warrant Officer within standard time frames. Nor did he believe his performance as a clerk was affected by his drinking. Mr Reid also said that he was never counselled by doctors about his drinking, an assertion supported by his defence medical records, and it was not until his discharge medical that his doctor told him that it was surprising that he did not have a liver disease, given his level of alcohol consumption.
74. At the same time, his evidence was that level of his drinking was for social reasons. As he remarked at the hearing, today he does not drink at lunchtimes because he does not have anyone to drink with. So the Tribunal is not satisfied that it was the circumstances of his service, or what he was expected or required to do to carry out his job, which caused him to drink. In that sense, his drinking was not attributable to his service.[18] That finding also takes into account his evidence that about one in five fellow members did not drink alcohol, or at least, did not do so regularly.
[18] Walsh v Rother District Council (1978) 1 All ER 510 at 514, applied in Repatriation Commission v Law (1980) 31 ALR 140 at 151; Wedderspoon v Minister of Pensions (1947) KB 562 at 564.
75. The Tribunal notes that causation issues involve questions of fact specific to the individual circumstances and that the outcomes in other cases cannot be determinative of cases with similar facts.[19]
[19] For example, Military Rehabilitation and Compensation Commission and Archer [2010] AATA 525.
But for rendering of service, or for change in environment
76. Finally, it was contended that Mr Reid’s alcohol consumption would not have occurred but for his rendering service, or but for the change of his environment on service.
77. It is accepted law that ‘the concept of “but for” implies, indeed is synonymous with, some kind of causal connection’.[20] The Tribunal is to take a ‘common sense and practical’ approach,[21] or some degree of proximity[22] to events on service.
[20] Military Rehabilitation Commission v Roberts (2007) 238 ALR 637 at 648 per Madgwick J, citing Bull v Attorney-General (NSW) (1913) CLR 370; Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 at 565-6.
[21] Kennedy v Telstra Corporation Ltd (1995) 61 FCR 160 at 170 per Tamberlin J
[22] Schmid v Comcare (2003) 77 ALD 782 at [100] per Weinberg J.
78. The Tribunal has already found that Mr Reid’s drinking was principally for social reasons and was not caused by or attributable to the demands of his employment. Taking a common sense approach and requiring some degree of proximity or causal connection, the Tribunal is not satisfied that Mr Reid’s drinking to excess would not have arisen in any circumstances where he had access to alcohol and others with whom to socialise. In other words, the Tribunal is not satisfied that but for service or for changes in his environment consequent on enlistment, that Mr Reid’s drinking pattern would not have developed.
Conclusion
79. On balance, despite Mr Reid’s circumstances meeting at least two of the factors relating to alcohol consumption which in turn in part led to his obesity in the relevant Statements of Principles, the Tribunal finds beyond reasonable doubt that Mr Reid’s drinking and in turn his obesity did not arise out of nor was it attributable to his service. Accordingly the Tribunal is satisfied that Mr Reid’s hypertension was not causally connected to service.
80. The decision under review is affirmed.
| I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member |
.....................[sgd]...................................................
Associate
8 August 2014
| Date(s) of hearing | 23 April 2014 and 10 June 2014 |
| Counsel for the Applicant | Allan Anforth |
| Advocate for the Applicant | James Wain |
| Solicitors for the Applicant | Vietnam Veterans' Federation ACT Branch |
| Counsel for the Respondent | Gerald Purcell |
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