Smith and Repatriation Commission

[2003] AATA 560

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 560

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/680

VETERANS'     APPEALS       DIVISION

Re:         BERYL FLORENCE SMITH

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             14 May 2003

Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

VETERANS' AFFAIRS ‑ widow's pension ‑ Cerebrovascular Accident ‑ alcohol consumption ‑ whether veterans' death war‑caused

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [(2002) 69 ALD 581

REASONS FOR DECISION

14 May 2003  M.J. Carstairs, Member

1.      This is an application by Beryl Florence Smith (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 6 May 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) that the death of the applicant’s husband, Alan John Smith (the veteran), was not war caused.

2.      At the hearing the applicant was represented by Ms I. Black of DeMarchi and Associates.  The respondent was represented by its advocate Ms J. McCulloch.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act (1975) as well as exhibits marked A1-A3 for the applicant and R1-R6 for the respondent.

BACKGROUND

4.      The applicant met the veteran in July 1958 and they married on 19 December 1959. 

5.      The veteran was born on 26 March 1938.  He died on 14 September 1994 at the age of 56.  The death certificate dated 28 September 1994 (T5) cited the cause of death as:

§cerebrovascular accident - minutes

§hypertension – years

§obesity – years

§sleep apnoea - years

6.      The veteran served with the Royal Australian Navy (the Navy) from 8 August 1955 to 25 March 1962 (T4).  He served in Malaya from 5 April 1957 to 7 May 1957 and from 7 June 1957 to 28 June 1957.  The veteran also served in the Far East Strategic Reserve during the periods 17 March 1958 to 3 April 1958, 23 April 1958 to 13 May 1958, and 24 March 1961 to 17 April 1961.  The veteran had rendered operational service for the purposes of the Veterans' Entitlement Act 1986 (the Act).  During his service the he was a cook on board HMAS Melbourne and was posted to HMAS Warramunga for a short period in 1957.  The veteran had no accepted or rejected conditions under the legislation.

7.      The applicant lodged a claim for pension in respect of the veteran's death on 30 May 2001 (T6) and this claim was rejected by the respondent on 27 July 2001 (T9).  The VRB affirmed this decision on 6 May 2002, on the basis that the veteran's death was not related to his service.  The applicant filed an application for review with this Tribunal on 3 July 2002.

8.      At the commencement of the hearing, Ms Black confined the issues in dispute to cerebrovascular accident, and stated that the only factor that would be relied upon  was factor 5(e) of the relevant Statement of Principle (SoP), namely:

Regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident;

EVIDENCE

9.      In a written statement dated 9 October 2002 (exhibit A3) the applicant stated that her husband had been a non‑smoker and that she believed he was a non‑drinker prior to service.  She stated that he ceased smoking in 1968 on medical advice.  However, though he had been told that he had an enlarged liver in the 1960’s, he did not cease drinking.  The applicant gave oral evidence that the veteran's sister had told her that, prior to service, the veteran was not a drinker.  However, the applicant said that when she met the veteran, while he was still in the Navy, he was a confirmed drinker and would carry a flask of whisky with him wherever he went.  The applicant said the veteran had told her that during service when he had used up his ration of alcohol, he would resort to lemon and rum essence.  The applicant attributed the veteran’s alcohol consumption to the devastation he experienced when he learned of the death of a close friend, Alan Cooper, also a naval cook, by drowning in Singapore Harbour on 24 December 1957.

10.     The applicant stated that the veteran was discharged from the Navy on 25 March 1962 and joined the police force on 26 March 1962.  She said that prior to the veteran's retirement from the police force he would drink a couple of glasses after work to unwind.  She said that he would also drink with work colleagues, if they were out doing country work in the drug squad.  She stated that her husband's alcohol consumption never impinged upon his life at home or at work, and that he was a loving husband and a dedicated policeman..  In the 1960s his doctor diagnosed an enlarged liver and high blood pressure.  However, she said that the veteran continued to drink until his death.  The applicant said that the veteran retired from the police force on 2 July 1989 and afterwards he became withdrawn and spent most of his time indoors, using the computer.  Although she could not quantify the amount of alcohol her husband drank after his retirement, the applicant said that she knew he had been drinking as she found empty glasses he had hidden.

11.     When the applicant was taken in cross-examination to a medical report by Dr K McLean dated 26 May 1992 (exhibit R4) in which Dr McLean stated:

He was in the navy from the age of 17 to 24 and in those days used to drink a great deal of beer.  He had a chest x-ray and Stewy Preston commented that there was something wrong with his chest x-ray and he should not touch any more grog and he says that he was been fairly careful about alcohol ever since.

the applicant said that while her husband did become more careful about alcohol than before, he also became more secretive in his drinking habits.  She said they had a lot of alcohol at home, but she was not with him when he bought alcohol and she agreed that it was not possible for her to be clear about what quantities her husband consumed.

12.     In a report dated 28 November 2003 (A2), Dr E. Cole stated that …his drinking habits… would certainly be consistent with a diagnosis of alcohol dependence.  He added, the other nervous symptoms …would be consistent with his suffering from generalised anxiety disorder if not post traumatic stress disorder...  However, Dr Cole noted that further information would be required, particularly as there was insufficient information to suggest that the veteran's service was stressful, in order to satisfy the requirements of the Statement of Principles.

13.     In a report by WriteWay Research dated 23 September 2002 (R3), Commodore (Rtd) P.M. Mulcare confirmed the details surrounding the death of Alan Cooper.

CONSIDERATION OF THE ISSUES

14.     Section 8 of the Act, insofar as relevantly raised here, provides:

(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

…

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;  

15.     Section 120 of the Act provides:

(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note:   This subsection is affected by section 120A.

16.     The provisions dealing with the standard of proof in claims made after 1994 are to be found in section 120A of the Act.  It provides, so far as relevant, as follows:

(1)       This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

…

(3)          For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)       a Statement of Principles determined under subsection 196B(2) or (11); or

(b)       a determination of the Commission under subsection 180A(2);

That upholds the hypothesis.

17.     The principles to be applied in cases where s120A applies were set out by the  Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a series of steps:

1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.

18.     The relevant Statement of Principle in this case is Instrument N°52 of 1999 for Cerebrovascular Accident.  Factor 5(e) states:

Regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident;

19.     Ms Black submitted that the Tribunal should find that death was war-caused and that the evidence pointed to the veteran consuming twenty‑five standard drinks per week which required that he drink less than four standard drinks per day.  She submitted that the connection with service was that prior to service the veteran was a non-drinker and that after service he drank heavily.  Although Ms Black acknowledged that on the applicant’s evidence it was impossible to quantify the level of the applicant’s drinking in the year prior to his death, she submitted that the Tribunal could be satisfied on the balance of probabilities that the level of drinking set out in the factor was met.

20.     Ms McCulloch submitted that the limited periods of operational service, as set out above, were of particular importance in this case.  She submitted that the causal link between drinking and service was not made out.  According to his service records, the applicant was well on enlistment, and well on discharge.  She pointed out that the death of the veteran’s colleague, Alan Cooper, did not occur during a period of operational service.  She submitted that on the basis of the medical evidence (exhibit R4) the Tribunal should prefer the recorded evidence that the veteran modified his drinking on medical advice in 1969.

21.     Ms McCulloch submitted that not only was the causal connection between alcohol consumption and service missing, the absence of clear evidence on the amount of alcohol being consumed in the last twelve months before the veteran’s death meant that the Tribunal could not be satisfied that the factor was met.  She submitted that evidence of empty glasses was not indicative of the amount of alcohol consumed.  On the applicant’s evidence she was not present at all times when the veteran was drinking, and he shopped without her.

22.     The Tribunal reached its decision taking into account the oral and written evidence and the submissions at hearing.

23.     The factors that must be met are those that are provided for in the SoP and those alone (Repatriation Commission v Hill (2002) 69 ALD 581).  The applicant was unable to provide direct evidence that the veteran was consuming an average of 250g per week of alcohol for a continuous period as required by the SoP.  She could say only that she knew that he was drinking in the year up to his death as she found empty glasses.  Her evidence, given honestly and to her best recollection, was that she was not present and could not say what amount of alcohol her husband consumed.  The SoP is specific in its requirements for a quantity to be established and does not allow for inferences or estimates to be made. 

24.      For this reason, the Tribunal finds that the hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran is not a reasonable one.  The hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoP at factor 5(e), as the specified amount must be established. The third step in Deledio is not met and the claim relating the veteran’s death to cerebrovascular accident and alcohol consumption must fail.

DECISION

25.     The Tribunal affirms the decision under review.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision herein of  

M.J. Carstairs, Member

(sgd)       Olympia Sarrinikolaou
              Clerk

Date of Hearing:  13 May 2003

Date of Decision:  14 May 2003

Advocate for the applicant:          Ms I. Black, DeMarchi and Associates

Advocate for the respondent:       Ms J. McCulloch, Department of Veterans’ Affairs