Skinner and Repatriation Commission (Veterans' entitlements)

[2023] AATA 1227

Skinner and Repatriation Commission (Veterans' entitlements) [2023] AATA 1227 (17 May 2023)

Division:Veterans' Appeals Division

File Number:          2020/6956

Re:Raelene Skinner

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak KC, Member

Date:17 May 2023

Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution, decides that the death of Gary Skinner was defence caused and pension is to be paid to the Applicant under s 70(1) of the Veterans’ Entitlement Act 1986 (Cth) with effect from 29 July 2019.

.........................[sgd]...............................................

Mr A. Maryniak KC, Member

CATCHWORDS

VETERANS' AFFAIRS - War widow's pension - Whether veteran's death war-caused - Statement of Principles - Whether alcohol consumption increase caused by service - Held factor connecting death by suicide to service - Held Applicant entitled to war widows' pension - Decision set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Veterans’ Entitlement Act 1986 (Cth)

CASES

Roncevich v Repatriation Commission (2005) 222 CLR 115

SECONDARY MATERIALS

House of Representatives Ministerial Statement, Future of Australian Forces in Vietnam and National Service, Speech 18 August 1971

Statement of Principles concerning suicide and attempted suicide (No. 66 of 2016)

Statement of Principles concerning alcohol use disorder (No. 49 of 2017)

REASONS FOR DECISION

Mr A. Maryniak KC, Member

17 May 2023

1. The Applicant seeks review of a decision of the Veteran’s Review Board dated 15 October 2020 to refuse an application for the grant of a war widow’s pension on the ground that her late husband’s death was not related to his defence service. This application is brought in respect of a claim under the Veterans’ Entitlement Act 1986 (the Act).

   BACKGROUND

2. The Applicant’s late husband, Mr Skinner (the veteran) served from 26 January 1972 when he was called up for National Service in the Australian Army until he was discharged on 25 July 1973.[1] On 5 December 1972, the Government abolished conscription and serving national servicemen were free to leave the army if they wished. On 11 December 1972, the veteran elected to serve out the uncompleted portion of his National Service.[2]

   [1] T10/33-35.

   [2] R1/11.

3. The veteran and the Applicant had known each other since they were children and became engaged in December 1971.[3] In mid-1972, the veteran and the Applicant broke off their engagement. The veteran and the Applicant subsequently reconciled and were married in January 1973. The relationship ultimately broke down after an Apprehended Violence Order was issued in June 2017.[4] At the time of his death, the Veteran and Applicant had been separated for five months.[5]

   [3] T6/20.

   [4] T6/28.

   [5] T7/19a, paragraph 16.

4. The veteran died aged 66 years old. The parties agree and the Tribunal finds that the veteran’s cause of death was by suicide while intoxicated on 19 October 2017.

   LEGISLATION

5. The Act provides the relevant statutory framework and limits the relevant period of defence service to the period 7 December 1972 to 25 July 1973 (the Claimed Period).

6. Part IV of the Act relates to pensions to veterans and their dependants. The parties agree and the Tribunal finds that the veteran was a ‘member of the Forces’ and a ‘member of the Defence Force’ pursuant to ss 68(1), 69(1)(a) and (f), and 70 of the Act.

7. The Applicant’s eligibility for the pension sought is pursuant to s 70(1). Section 70(1) relevantly provides that:

   (1)  Where:

   (a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or

   (b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;

   the Commonwealth is, subject to this Act, liable to pay:

   (c) in the case of the death of the member—pension by way of compensation to the dependants of the member; or

   (d) in the case of the incapacity of the member—pension by way of compensation to the member;

   in accordance with this Act. 

8. The Act is beneficial and provides that the Commission (and hence the Tribunal) is not bound by technicalities, shall act according to substantial justice and the substantial merits of the case, and shall take into account any difficulties in ascertaining facts due to the passage of time, the absence or deficiencies in official records and related matters.[6]

   [6] The Act, s 119.

   ISSUES

9. The Tribunal is to determine whether the veteran’s death arose out of or was attributable to any defence service during the Claimed Period.[7] .

   [7] The Act, s 70(5)(a).

10. Section 70(5) of the Act has been the subject of analysis by the High Court in Roncevich v Repatriation Commission which held:

    The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability, without any qualifications conveyed by such terms as sole, dominant, direct or proximate.[8]

    [8] (2005) 222 CLR 115 [27] (‘Roncevich’).

11. The application is to be decided to the Tribunal’s ‘reasonable satisfaction’ and there is no onus of proof falling on either party.[9] In so determining a claim, the Tribunal is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

    (a)The material before the Tribunal raises a connection between the injury, disease or death of the person and some particular service rendered by the person;[10] and

    (b)there is in force a Statement of Principles determined under s 196B(3) or s 196B(12) that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.[11] The parties agree and the Tribunal accepts, from an analysis of the evidence before it, that the relevant Statements of Principles to consider are:

    (i)Alcohol Use Disorder (No. 49 of 2017); and

    (ii)Suicide and Attempted Suicide (No. 66 of 2016).

    [9] The Act, ss 120(4) and (6).

    [10] The Act, s 120B(3)(a).

    [11] The Act, s 120B(3)(b)(i).

    CONSIDERATION

12. The Tribunal has considered the oral evidence given during the hearing by the following individuals:

    (a)the Applicant;

    (b)Mr William Reid, veteran;

    (c)Ms Oberholzer, clinical psychologist;

    (d)Dr Nigel Strauss, psychiatrist; and

    (e)Dr Kevin O’Daly, psychiatrist.

    The Tribunal has also considered the documentary evidence tendered by the parties comprising exhibits A1 to A11 and R1 to R4 and the submissions of the parties.

    Alcohol Use Disorder

13. A medical examination record of the veteran indicates that prior to entering the army the veteran was fit for service, with no prior injuries and no history of nail biting.[12] The Applicant gave evidence about upsetting conversations she had with the veteran in the first six months of his service regarding bullying and the way he was spoken to.[13]  Further, the Applicant gave evidence that the veteran was a changed person after he left the army. He was no longer easy going, was more pedantic and things had to be done right and correctly all the time.[14] Before going into the army the veteran was very fit, played lots of sports and was not a big drinker as he always had something on the next day, such as surfing.[15] Once in the army, and particularly in the last few months of his service, the Applicant noticed that he was drinking more alcohol more often and sometimes to excess.[16] By the time they were married the veteran had also developed a significant nail biting problem which he did not have previously.[17] 

    [12] T13/64: Medical Examination Record dated 18 October 1971.

    [13] Transcript P-13, P-16 and Exhibit A2. 

    [14] Transcript P-18.

    [15] Transcript P-20 and P-32.

    [16] Transcript P-20 and P-60.

    [17] Transcript P-34.

14. It is clear from the Applicant’s evidence that the veteran did not find his time in the army a positive experience overall, that he mostly preferred not to talk about it and that as at December 1972, he thought he would be sent to fight in Vietnam.[18] The Respondent made submissions to the effect that this belief could not be validly held during that time because Australian troops had essentially been withdrawn by then,[19] so there is a question as to the validity of the belief held. The Tribunal is satisfied that the veteran held the belief at that time, whether correct or not.

    [18] Transcript P-46.

    [19] House of Representatives Ministerial Statement, Future of Australian Forces in Vietnam and National Service, Speech 18 August 1971.

15. The Applicant’s evidence establishes that the veteran elected to stay in the army to obtain a highly attractive very low interest home loan which was made available during the Claimed Period. This is despite the ongoing negative impacts the veteran was experiencing which are established by the Applicant’s evidence and the consistent supporting evidence of Mr Reid. The Tribunal is satisfied that conscripts such as the veteran were treated as a ‘lower class’ of serviceman, that they were discouraged from wearing their uniforms off base and that a level of bullying and degradation was experienced by the veteran during his army service, including the Claimed Period. As a consequence, accepting also the general culture of drinking alcohol which prevailed in the army throughout the veteran’s service, the Tribunal is satisfied that the veteran’s service during the Claimed Period had a connection with the veteran’s increasing alcohol consumption and use throughout the remainder of his life.

16. Once he left the army the veteran’s increasing use of alcohol continued.[20]  In later years the veteran went to Alcoholics Anonymous to make attempts at giving up alcohol, which were unsuccessful.[21] He continued to drink excessively after he and the Applicant separated in May 2017 and the police took out an intervention order in June 2017. The veteran had a blood alcohol level of 0.16 at the time of his unfortunate suicide.[22]

    [20] Transcript P-20.

    [21] Transcript P-21.

    [22] Transcript P-21; Exhibit A5.

17. The Applicant’s detailed knowledge of the veteran acquired over many years is also a significant foundation for the expert medical evidence which is before the Tribunal. The Tribunal found the Applicant to be a truthful witness who was prepared to accept the limits of her memory where appropriate.  The Tribunal also notes that Mr Reid gave evidence which in parts was relevantly consistent with the Applicant’s evidence as to the veteran’s life both during the army and after, although Mr Reid did not know the veteran during the latter’s army service.

18. The Applicant was specifically cross-examined in respect of the factors which may establish alcohol use disorder as required by the Statement of Principles No. 49 of 2017 in order to satisfy the balance of probabilities threshold. The evidence must support a finding of a problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least four of a range of set factors occurring within a 12-month period.[23]

    [23] Statement of Principles (SoP) No. 49 of 2017, [7](2).

19. On the evidence before it, the Tribunal is satisfied that during 1973 the veteran:

    (a)often took alcohol in larger amounts or over a longer period than was intended,[24]

    (b)that the veteran developed a craving or a strong desire or urge to use alcohol during that year,[25] and

    (c)that he continued to use alcohol despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol during that year.[26]

    The Tribunal finds that none of the remaining factors occurred in respect of the veteran in or about 1973 and that there is no combination of four factors which occurred in 1973 or within 12 months thereafter.

    [24] SoP No. 49 of 2017, [7](2)(A); Transcript P-58.

    [25] SoP No. 49 of 2017, [7](2)(D); Transcript P-61.

    [26] SoP No. 49 of 2017, [7](2)(F); Transcript P-61-2.

20. However, the Tribunal finds that at least at the time of his suicide the veteran had a clinically significant alcohol use disorder, as agreed by the parties,[27] and that four or more requisite factors existed within the 12-month period prior to the veteran’s suicide.[28]

    [27] Respondent’s Closing Submissions [9.3].

    [28] SoP No. 49 of 2017, [7](2).

21. The medical evidence is consistent with these findings. Further, the Tribunal finds that the veteran’s increasing alcohol use had its origin in the veteran’s service during both the Claimed Period and his service prior to 7 December 1972. This finding is supported by the evidence of the Applicant, Dr Strauss and Ms Oberholzer. Insofar as Dr O’Daly was of the opinion that the veteran had pre-existing conditions including Alcohol Use Disorder the Tribunal rejects this and on balance prefers the extensive evidence from the Applicant that the veteran rarely drank alcohol before he went into the Army. There is no evidence before the Tribunal which supports the assertion by Dr O’Daly that the veteran had a pre-existing Alcohol Use Disorder prior to him serving in the Australian Army. The Applicant’s evidence indicates that the veteran rarely drank alcohol to excess pre-Army and the Tribunal accepts this evidence.

22. The Tribunal notes that Dr Strauss was instructed that the veteran served during the Claimed Period and not from his actual start date of 26 January 1972. It is not apparent that the report is based only upon facts strictly from the Claimed Period. Despite this limitation, the Tribunal accepts Dr Strauss’s opinion that the veteran’s service had a significant impact upon the veteran’s increasing consumption of alcohol through a combination of possible factors of unhappiness being a National Serviceman, bullying (which most likely was concentrated but not limited to the veteran’s service prior to the Claimed Period) and peer group pressure and the related culture of heavy drinking of alcohol within the Army.[29] Dr Strauss did not accept that the veteran’s conditions or any personality disorder would not have been impacted by the stressors he experienced in National Service as contended by Dr O’Daly. On balance the Tribunal prefers Dr Strauss’s opinion. Consistent with his opinion, Dr Strauss noted that the veteran developed a nail biting habit during National Service and that the veteran generally did not talk about his time in service save to mention to the Applicant that it had been unpleasant. The Tribunal is satisfied that Dr Strauss’ opinion is relevant to the veteran’s service during the Claimed Period.

    [29] Report of Dr Strauss dated 25 May 2021 (Strauss Report) p.6; Transcript P-137.

23. Although Dr Strauss states that the veteran ‘suffered a significant alcohol use disorder which worsened over the years and which commenced while he was in National Service’, such an opinion is not based upon and does not correlate with a finding of alcohol use disorder at or around 1973 pursuant to the relevant statement of principles.[30]  However, it is clear that Dr Strauss was of the opinion that the veteran suffered from alcohol use disorder at the time of his suicide.   Ms Oberholzer provided two reports in addition to her oral evidence. She explained the difficulties which the veteran encountered in being trained and mentally prepared for war, then not being deployed and the problems that can result where the veteran has received no proper debriefing upon finishing his service. She understood that the veteran was a well-adjusted young man who was coping with life stressors fairly well prior to National Service and that his mental health and alcohol abuse got worse after he left National Service. Ms Oberholzer did not reach any conclusions which addressed the various criteria set out in the relevant Statement of Principles[31] regarding the criteria for alcohol use disorder and when or if each occurred in respect of the veteran. She was also of the opinion that the veteran had developed anxiety symptoms during service, a possible major depressive disorder and alcohol abuse in the final years of his life.

    [30] SoP No. 49 of 2017.

    [31] SoP No. 49 of 2017.

24. On the evidence the Tribunal is satisfied that the veteran’s death was at least partially attributable to the veteran’s defence service during the Claimed Period pursuant to s 70(5)(a) of the Act and that a sufficient causal link existed.[32] The material does raise a connection between the veteran’s death and his defence service during the Claimed Period, hence satisfying s 120(3)(a) of the Act. The parties agree and the Tribunal finds that there are in force relevant Statements of Principles for the veteran’s kind of death, namely Alcohol Use Disorder No. 49 of 2017 and Suicide and Attempted Suicide No. 66 of 2016. The Tribunal finds that the evidence supports the conclusion that the veteran’s problematic pattern of alcohol use leading to clinically significant alcohol use disorder arose out of the veteran’s service during the Claimed Period and his prior service.

    [32] Roncevich at [27].

    Suicide And Attempted Suicide

25. In considering the further relevant Statement of Principles concerning suicide and attempted suicide No. 66 of 2016, the veteran’s agreed kind of death satisfies paragraph 7(1). Paragraph 9 requires the Tribunal to find that the veteran had at least one of a range of specified factors before it can conclude, on the balance of probabilities, that the veteran’s suicide was connected with the circumstances of the veteran’s service during the Claimed Period. The Tribunal is to determine whether the veteran had a clinically significant disorder of mental health as specified at the time of the suicide. This means one of a specified list of conditions of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner.

26. There is insufficient evidence to support a finding that the veteran had either a depressive disorder or a personality disorder at the relevant time. The Tribunal notes Dr Strauss’ opinion ‘that the primary diagnosis was an alcohol use disorder but [the veteran] developed a significant and major depression in the later months of his life because of his circumstances which were brought about by his excessive alcohol consumption over a prolonged period’.[33] However, this together with other observations do not support a conclusion so far as a depressive or personality disorder are concerned.

    [33] Strauss Report, p.6.

27. In the Applicant’s Statement of Facts, Issues and Contentions, she submitted that it was more probable than not that the veteran committed suicide because he had a significant disorder of mental health at the time of his suicide and/or that he experienced Category 2 Stressors (negative life events, the effects of which are chronic in nature and cause ongoing distress and concern) within 10 years of 19 October 2017.[34]

    [34] [12]; SoP No. 66 of 2016 [9](8).

28. A Category 2 stressor includes experiencing a problem with a long-term relationship including the break-up of a close personal relationship or marital separation.[35] The Applicant separated from the veteran in May 2017.

    [35] SoP No. 66 of 2016, [1] (definition of ‘category 2 stressor’).

29. The Respondent submitted in its Statement of Facts, Issues and Contentions that the veteran suffered the stressor of marital separation (thus the fact is not in issue) and it was contributed to by personality disorder and alcohol use disorder. It contended that these two disorders could not be upheld by the respective Statements of Principles.

1. In closing submissions, the Applicant addressed factor 9 but not 8.[36] The Tribunal is satisfied that the veteran was a perpetrator of bullying against the Applicant within two years before the veteran’s suicide on 19 October 2017.  The Applicant gave evidence of such bullying and the circumstances she outlined which preceded and resulted in the Apprehended Violence Order issued on 6 June 2017. Further the Tribunal notes that factors 8 and 9 under paragraph 9 of the Statement of Principles[37] do not require a finding of alcohol use disorder pursuant to Statement of Principles No. 49 of 2017 in respect of the veteran. They both stand as distinct alternative paragraphs in addition to paragraph 9(1).

   [36] SoP No. 66 of 2016 [9].

   [37] SoP No. 66 of 2016.

2. Hence, in addition to the Tribunal being satisfied that the veteran suffered from an alcohol use disorder at the time of his suicide,[38] and in the event that it is necessary to determine, the Tribunal is also satisfied that factors 8 and 9 under paragraph 9 of the Statement of Principles No. 66 of 2016 are established on the evidence with respect to the veteran and finds accordingly.

   [38] SoP No. 66 of 2016 [9](1).

3. The Tribunal must also be satisfied that there is more than a temporal connection to the veteran’s suicide and his service during the Claimed Period. As discussed above, the Tribunal has found that the veteran developed a significant nail biting habit and increasing alcohol use habit within his army service, including the Claimed Period. The Tribunal is satisfied that the veteran’s death is attributable to, inter alia, his alcohol use disorder which had its origins, in part, within the Claimed Period of the veteran’s service. The Tribunal notes the opinion of Dr O’Daly that the veteran’s ‘psychological condition at the time of his suicide [was] unrelated to his DVA service experiences’.[39] On balance the Tribunal prefers the opinion of Dr Strauss, which Ms Oberholzer essentially agrees with, that the veteran’s significant alcohol use (which commenced while he was in National Service and worsened over the years) increasingly adversely affected his marriage and ‘ultimately this man became significantly depressed once his wife left him and consequently took his own life’.[40]  Therefore, the Tribunal is satisfied that there is a sufficient causal connection with the veteran’s alcohol use disorder and suicide which was attributable to the Claimed Period in the context of the requirements of s 70(5)(a) of the Act.

   [39] Report of Dr O’Daly dated 29 October 2021, p.12.

   [40] Strauss Report, p.6.

4. The Tribunal finds that the death of the veteran was service-related and that the correct or preferable decision is to set aside the decision under review. In substitution, the Tribunal decides that the Applicant is entitled to and is to be paid the appropriate pension with effect from 29 July 2019.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

..............................[sgd]..........................................

Associate

Dated: 17 May 2023

Date(s) of hearing:	25 and 26 August 2022
Date final submissions received:	10 October 2022
Counsel for the Applicant:	Mr Dino De Marchi
Solicitors for the Applicant:	De Marchi & Associates
Respondent:	Repatriation Commission
Advocate for the Respondent:	Mr Ken Rudge