Smith and Repatriation Commission - [2002] AATA 528

DECISION AND REASONS FOR DECISION [2002] AATA 528

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/430

VETERANS' APPEALS DIVISION

Re: JAMES SMITH

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
  Mr A. Argent, Member
Date:              28 June 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS – alcohol dependence or abuse – anxiety disorder – whether war-caused – whether hypothesis reasonable – whether experienced a severe stressor – whether events involved actual or threat of death or injury – whether perception of threat sufficient – whether anxiety disorder discrete condition or associated with alcohol abuse
Veterans' Entitlements Act 1986
Cranage and Repatriation Commission [2000] AATA 1119

REASONS FOR DECISION

28 June 2002 Mr B.H. Pascoe, Senior Member

Mr A. Argent, Member

This is an application to review a decision of the Veterans' Review Board ("VRB") of 14 March 2001 which affirmed a determination of the respondent dated 25 February 1999 that a claimed condition of alcohol dependence or alcohol abuse was not war caused.
At the hearing, the applicant, Mr J. Smith, was represented by Mr G. Moore of counsel and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. Evidence was given by Mr Smith and three psychiatrists, Dr J. Cooper, Dr E. Cole and Dr T. Gidley. In addition to the documents provided by the respondent under s37 of the Administrative Appeals Tribunal Act 1975, the following documents were tendered by the parties:
Statement of Mr Smith – 12 April 2001 — Exhibit A1
Report of Dr E. Cole – 5 July 2001 — Exhibit A2
Letter from Williams Winter and Higgs to Dr J. Cooper – 21 March 2002 — Exhibit A3
Letter from Dr J. Cooper to William Winter and Higgs – 3 April 2002— Exhibit A4
Clinical Notes of Dr B. Weiss (general practitioner) — Exhibit R1
Transcript of VRB Hearing 14 March 2001 — Exhibit R2
Report of Dr T. Gidley – 4 October 2001 — Exhibit R3
Merchant Ships Movement Cards – numbered 1-46 - Exhibit R4
Merchant Ship Movement Records – from SS Koranui, SS Lowana and SS Laranah — Exhibit R5
Report of Captain H.A. Josephs, Writeway Research Service - 9 February 2002 — Exhibit R6
Mr Smith was employed on merchant ships as an Australian mariner during the Second World War from 15 October 1940 to 25 June 1945 which constituted eligible war service under the Veterans' Entitlements Act 1986 (the Act). He had two periods of operational service under the Act from 17 April 1942 to 2 July 1942 and 13 February 1943 to 23 March 1943 while serving on SS Canberra and AHS Manunda.
Mr Smith was born on 2 December 1921 and migrated with his family from England to Australia when he was 10 years old. He joined the Merchant Navy in 1938. He was employed as a stoker on coal burning vessels. After the war he continued working in boiler rooms of ships until he retired in 1988. Mr Smith said that his ship sailed in convoy through waters known to be susceptible to attack by enemy submarines or mines. No ships on which he served, nor any convoy in which he sailed were ever attacked. On one occasion he believed that he had seen residue on the surface from a sunken ship, the Iron Chieftain, on which he had served previously. He knew other seamen who had been killed by enemy attacks on their ships. He recalled 2 or 3 occasions when floating mines were detonated near his ship. He had not actually seen any mine but was told of them being detonated. He believed that, on one occasion, he was aware of the ship "shuddering" and, after coming off watch, was informed that Royal Australian Navy personnel on board had shot and detonated a floating mine.
Mr Smith said that alerts were sounded on a number of occasions and, being below the water line and unable to see what was happening, he became fearful not knowing whether his ship was in any immediate danger. He said that he was aware that, when an alert was sounded, watertight doors were closed automatically, effectively locking him in to the boiler room. He said that he was "scared all the time" and had difficulty sleeping and experienced nightmares of the ship going down.
Mr Smith said that he first commenced drinking alcohol in 1940 or 1941. His father, also a seaman, was not a heavy drinker and alcohol was not consumed in the home. Mr Smith said that he had two brothers, both seamen, who were heavy drinkers. He said that his drinking increased significantly in 1942 both when returning to port after a voyage and on the ship using alcohol distilled by the crew. He said that he continued to drink heavily until January 2001 when he suffered a stroke. Prior to that time he would, on average, consume 12 stubbies of full strength beer and a half bottle of rum each day. Since January 2001 he has resumed drinking at the rate of some 6 to 7 stubbies on 4 or 5 occasions each week. He said that he had lost his driver's license on two occasions as a result of alcohol. Mr Smith accepted that most seamen of his time liked to drink and it was a normal activity to "hit the pubs" when on shore.
Mr Smith said that he enjoyed his work on ships and had no difficulties with his duties after the war. He said that he had been confident and sociable, and even now, some of the younger seamen with whom he had sailed call him and he meets them for a drink. He acknowledged that he had never reported any anxiety or psychological problems to his general practitioner, Dr Weiss, who has treated him for over 15 years.
Dr Cooper examined Mr Smith on 21 July 2000 and provided a report dated 30 August 2000 (T15). He diagnosed Mr Smith as having alcohol abuse disorder which commenced in the 1940s. In addition, Dr Cooper was of the opinion that Mr Smith suffers from generalised anxiety disorder and that both conditions dated from his war service. He believed that they were separate and distinct conditions, with the anxiety disorder not resulting from alcohol abuse. Dr Cooper accepted that the seagoing environment could have been an influence toward heavy drinking as was the drinking by father and brothers. He acknowledged that no ships on which Mr Smith had sailed had been attacked but believed that the threat had led to a fearful state of mind. Dr Cooper did not consider that it was extraordinary that Mr Smith was happy to continue working in an engine room for the subsequent 46 years when there was no threat of external attack.
Dr Cole examined Mr Smith on 22 June 2001 and provided a report dated 5 July 2001 (Ex A2). He was of the opinion that Mr Smith's symptoms were consistent with the suffering from a post traumatic stress disorder although he accepted that there would be difficulty in meeting the requirements of the relevant Statement of Principles (SoP). However, Dr Cole did believe that the applicant suffered from generalised anxiety disorder and alcohol dependence or abuse. He was of the view that both conditions were the result of war service given that Mr Smith had been exposed to very frightening experiences on several occasions with the threat of attack while trapped below the water line of his ship. Dr Cole accepted that it could be said to be unusual to not avoid the place where anxiety and stress started, but that continuing in the same occupation for the next 46 years may have caused Mr Smith to be uneasy but not fearful when there was no external threat and doors were not shut. Dr Cole acknowledged also that anxiety had not appeared to impede Mr Smith's ability to function in his work but thought that there may have been an element of self-medication by alcohol.
Dr Gidley examined Mr Smith on 27 January 1999 and again on 4 October 2001. He provided reports dated 19 February 1999 (T10) and 4 October 2001 (Ex R3). In his first report, Dr Gidley concluded that Mr Smith was suffering from alcohol dependence disorder, with some associated anxiety, related to his alcohol use. He did not accept that there were clear links between his alcohol dependence and war service, but rather his alcoholism appeared to be due to a mix of constitutional and life long socio-cultural factors. Dr Gidley's opinions did not change in his second report. He believed that Mr Smith's "pattern of alcohol use was clearly maladaptive by 1942, which was when his drinking was beginning to incur the wrath of authorities." He said that "the veteran seems to have developed a primary type of alcohol dependence where early in his drinking career his control was poor or absent, indicating a constitutional predisposition to dependence" and that "the socio-cultural factors that influenced his drinking arose from the Merchant Navy, where alcohol use, during runs ashore, was considered to be part of a seaman's way of life." Again, Dr Gidley was of the opinion that Mr Smith's anxiety was a complication of his alcohol dependence rather than a discrete disorder. In his oral evidence, Dr Gidley accepted that he could not rule out absolutely a contribution of stresses during the war to Mr Smith's condition.
As Mr Smith had operational service, s.120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are:
Instrument Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
Instrument Nº 48 of 1994 concerning Generalised Anxiety Disorder
Instrument Nº 1 of 2000 concerning Anxiety Disorder

Each of the relevant SoPs set out the factors, one of which must relate to the veteran's service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.

For the applicant, it was submitted that a reasonable hypothesis was that stress during operational service had led to excessive drinking which, in turn, had led to the condition of alcohol dependence or abuse. Alternatively, it was put that the stress had led to a generalised anxiety disorder which had led to alcohol dependence or abuse. It was noted that, while the claim lodged by Mr Smith in December 1998 included a claim for anxiety/post traumatic stress disorder, before the VRB this claim was not pursued and only the claim for alcohol dependence or abuse was dealt with by the VRB. Nevertheless, as such claim was dealt with and denied by the respondent, it is appropriate for such claim to be considered by this Tribunal.
Under Instrument N° 76 of 1998 concerning alcohol dependence or alcohol abuse the factors relied upon were:

5. …
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before clinical onset of alcohol dependence or alcohol abuse …

For the purposes of this SoP:
8. …
experiencing a severe stressor means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror…

For the applicant, it was submitted that the events described by Mr Smith satisfied the definition of a severe stressor in that he was confronted by events which threatened injury. While he did not experience an actual attack, the threat was said to be real. For the respondent, it was submitted that the definition required an objective event to have occurred and Mr Smith did not experience, witness nor was confronted with an actual event involving threat of injury or death. There have been several Tribunal decisions in which the question of whether the words "experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury" refer to objective considerations being events which involve actual or threatened death or injury or whether a subjective fear that such events could happen has been considered. In Cranage and Repatriation Commission [2000] AATA 1119, Senior Member Handley said at paragraph 93:
…
The Statement of Principle is a legislative instrument. It is a disallowable instrument under s46A of the Acts Interpretation Act and is subject to rules of statutory interpretation. On this basis I am satisfied that the submissions made by the respondent as to the manner in which "experiencing a stressor" should be interpreted are sound. I can do no better than to adopt part of the decision in Re Slattery at paragraph 79 as follows:
"the word "witnessed" suggests that the person was present at the event involving real or present (i.e. actual) or threatened death. The word "experienced" suggests that the person observed or encountered such an event and the word "confronted" that he or she was faced with such an event."
(A similar conclusion was reached in a decision of the Tribunal in Re Thomson and Repatriation Commission 2000 AATA 635 – refer paragraph 48.)

In this case the clear evidence was that Mr Smith did not ever experience, witness or confront an actual event that involved him or any others of his shipmates in actual or threatened death or injury. In many ways his experiences were little different to people who served during the war where enemy may have been known to be within their area but they did not experience an actual attack or were objectively threatened by an attack. As a consequence we are satisfied that, while Mr Smith clearly suffered from the condition of alcohol abuse, the requirements of the relevant SoP for that condition to be connected with the circumstances of his war service are not met. It should be said, in addition, that the history of his drinking given to the Tribunal and to the psychiatrists, by whom he was examined, have led us to the view that his excessive drinking habit had been well established prior to April 1942 when he was first exposed to possible danger from the enemy. In addition, we are satisfied that, while he may well have experienced worry, concern or fear when at sea in 1942 and 1943, it was not "intense fear, helplessness or horror." Consequently, we are satisfied beyond reasonable doubt that the condition of alcohol dependence or alcohol abuse was not war-caused.

From the evidence given by Mr Smith and the three psychiatrists, we are not satisfied that any anxiety condition meets the diagnostic criteria of the relevant SoPs. In any event, we prefer the evidence of Dr Gidley that any anxiety condition was secondary and related to his alcohol abuse. We are influenced in our view of the likelihood of him having suffered a condition of anxiety disorder by the fact that he continued in the same employment for some 46 years after his operational service. He enjoyed his work, had no difficulties with his duties and was confident and sociable. Even if it could be said that he did suffer from an anxiety disorder, we are satisfied beyond reasonable doubt that any such condition did not precede his alcohol abuse and the hypothesis raised attributing alcohol dependence or abuse to the anxiety condition is not a reasonable hypothesis. For completion, it should be said that, for reasons similar to those in relation to alcohol dependence or abuse, we are satisfied that Mr Smith does not meet the required factors in the relevant SoPs for an anxiety condition to allow a finding of it being war-caused.
It follows that the decision under review should be affirmed.
I certify that the thirteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Mr A. Argent, Member
(sgd)       Olympia Sarrinikolaou
              Clerk
Date of Hearing:  22 May 2002
Date of Decision:  28 June 2002
Counsel for Applicant:                 Mr G. Moore
Solicitor for the Applicant:           Williams Winter Higgs
Counsel for Respondent:            Nil
Solicitor for the Respondent:        Nil – Mr K. Rudge, Advocate with the Department of Veterans' Affairs