Smith and Repatriation Commission - [2002] AATA 496

DECISION AND REASONS FOR DECISION [2002] AATA 496

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1250

VETERANS APPEALS DIVISION           )
           Re      FLORENCE SMITH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date21 June 2002
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED that the death of Greville Douglas Smith was war-caused.
  ...........Sgd J Handley....................
  Senior Member
CATCHWORDS
Veterans' Entitlements - Deceased exposed to bombing raids at Broome - operational service - subsequent heavy consumption of alcohol - death by cerebral haemorrhage - whether death connected with service - decision set aside.
Statement of Principles Instrument No. 76 of 1998
Statement of Principles Instrument No. 52 of 1999
Statement of Principles Instrument No. 31 of 2001
Veterans' Entitlements Act 1986 – s.6A item (1)(d), s 120A & s 196B
Repatriation Commission v Gorton (1996) 43 ALD 574
Repatriation Commission v Deledio (1998) 49 ALD 193
Critch v Repatriation Commission [2001] FCA 1194

REASONS FOR DECISION

21 June 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board made on 8 September 2000, which affirmed the respondent's decision made on 29 September 1998. The respondent then refused the applicant's claim for widow's pension.
The applicant is the widow of the late Greville Douglas Smith, who was born on 31 January 1921 and died on 8 January 1998. Death was certified as-
"brain - extensive intra pontine haemorrhage; hypertensive cardiac disease; bilateral adrenal hyperplasia".
All of the deceased's service in the Australian Army was within Australia, however, the application is based entirely on circumstances of an event in Western Australia. On the evening of 20-21 May 1943, a Japanese Aircraft dropped a number of bombs near Broome. Mr Douglass conceded that those circumstances fell within s.6A item 1(d) of the Veterans' Entitlements Act 1986 ("the Act"). The effect of this provision is to regard the events of that night as being operational service. Accordingly, Mrs Smith is entitled to the beneficial standard of proof.
Mr Tobin put the circumstances giving rise to death were connected with 3 different Statements of Principles, namely-
"i. Psychoactive Substance Abuse or Dependence - Instrument No. 76 of 1998, factor 5(b)
ii. Hypertension - Instrument No. 31 of 2001, factor 5(b) and
iii. Cerebrovascular Accident - Instrument No. 52 of 1999, factors 5(a),(e) and (m)(ii)".
The respondent conceded that the deceased's lifetime smoking habit did originate in service. Additionally, the respondent noted that the deceased was found to be hypertensive "before 1985" when Mr Smith attended Dr Booth for the first time and when it was noted that he was then consuming anti-hypertensive medication. Hospital records also indicate that at 1977 the deceased was hypertensive. The respondent in those circumstances conceded that the deceased was hypertensive and the clinical onset of hypertension was at 1977.
Additionally, the respondent conceded that the events of 20-21 May 1943 amounted to "experiencing a severe stressor", as those words are defined in Instrument No. 76 of 1998 (Psychoactive Substance Abuse).
The respondent, however, remained unclear as to why the deceased commenced consumption of alcohol and more specifically whether it could have an association with the events of 20 -21 May 1943.
For the purposes of this application, it was agreed between the parties that one 26-ounce bottle of beer contains 10 grams of alcohol. Accordingly, it was agreed for the purposes of this review that 200 grams of alcohol, as that measurement is found within some of the above instruments, would be consumed if the deceased drank five 26 ounce bottles of beer per week. The sum of 215 grams, as is also found in some of the above Instruments would be consumed if the deceased drank more than six 26 ounce bottles of beer per week.
The hearing of the application commenced in Bendigo on 22 January 2002. The hearing did not conclude and was adjourned to a date to be fixed in order to take evidence from Doctor Lester Walton, a consultant psychiatrist with whom the applicant consulted.
Florence Alice Smith
Mrs Smith is the applicant in these proceedings and the widow of the deceased veteran. She said she married the late Mr Smith in 1950 having met him in 1947 when he was then 24 years of age.
Mrs Smith said that her husband had told her that his mother died when he was 13 years of age and when he was the eldest of 5 children. She said that he was responsible for looking after a number of his siblings on a number of occasions and an Aunt and a Grandmother also cared him in turn for. She said the Aunt and Grandmother were strict teetotalers and also frowned upon smoking cigarettes.
Mrs Smith said that she was aware that her husband did not smoke or drink before enlistment, which occurred when he was 18 years of age. Prior to that date he had been a farm labourer and at the age of 16 moved to Melbourne where he worked with Henderson Springworks.
Mrs Smith said that her husband did not "talk a lot about his service". She said that he became very upset and emotional. On occasions she said that he was in tears when his service was raised and specifically when the episode at Broome was discussed. She said she did not seek details from him because she did not want to "force the issue". She described him as being a very sensitive man and a person who from time to time would panic.
Mrs Smith said that following service her husband drank alcohol to excess. Initially he drank wine because in the rural district where they lived there was no local hotel. She said that he would become intoxicated on one or two occasions per week. Additionally, Mrs Smith said she was aware that he had started to consume alcohol, in the form of beer, during service.
From about 1950, when the deceased was then 27 years of age, she said that he then "settled down" but did spend a lot of time with friends at a hotel or fishing. She said that he was then drinking alcohol on two or three occasions per week in local hotels but then started to drink at home. She said that he was drinking between one and four bottles of beer per night, sometimes up to five bottles per night. She said he drank 26 ounce bottles. She said that when he drank he would either be jovial or he would be argumentative. On occasions he was violent and was violent towards her.
Mrs Smith said that her husband did not attend Anzac Day marches or reunions and did not like the memories of his service. She said that his experience at Broome terrified him and he had told her that he 'never prayed harder'. She also recalled that her husband used to say to her that as a result of surviving that episode 'someone was looking after' him.
With respect to prior illnesses, Mrs Smith said that her husband had been hypertensive for many years. Dr Barry treated him for high blood pressure for many years prior to first consulting with Dr Booth in 1985. She said that he had been consuming hypertensive medication before he first consulted Dr Booth.
With respect to her evidence at the Veteran's Review Board Mrs Smith said that her husband had been consuming aspirin on a regular basis prior to death but she could not recall for how long. She said her husband was responsible for his own medication but she was aware that he was taking ½ a tablet at a time. He also used a nebuliser 4 times per day as a result of suffering from emphysema.
In cross-examination, Mrs Smith acknowledged that a number of entries in the Swan Hill Hospital records and other medical records contain references to modest quantities of alcohol her husband consumed. She said that he did not want others to know that he drank excessively and that he was not 'proud' of his drinking. She said that his friends knew that he was a heavy drinker of alcohol but her husband was concerned about his reputation. He also did not pass on to his doctors that he was drinking large amounts of beer. She said her husband was not a 'social' drinker as was recorded in one of the hospital records.
Mr Smith said that she understood her husband consumed large quantities of alcohol because of his experience in Broome. She recalled that her husband used to wake up in his sleep and yell. Despite her temptation, she did not talk to him about the Broome episode because she 'didn't like to hassle him'.
With respect to her evidence at the Veterans Review Board and earlier as to her husband's consumption of beer, Mrs Smith said in cross-examination that he would mainly drink two bottles of beer per night and sometimes four and on occasions five if he became 'contrary'. Most of the time she said that he would drink two or three bottles per night. She said he loved beer. She said that she and her husband would purchase groceries and beer at the same time. Groceries would be purchased either once per week or once per fortnight. He would then purchase between one and three dozen bottles of beer, depending on how much he had at home.
With respect to the notes of Dr Booth, Mrs Smith said that it would not have been apparent to Dr Booth that her husband did drink heavily. She said her husband would not have told him and would have been embarrassed to tell him. She said that Dr Barry who treated before Dr Booth, was aware of her husband's alcohol habit because they both had an association with the local football club where alcohol was consumed.
Mrs Smith agreed that she told the Veterans Review Board (VRB transcript p.8) that her husband was 'issued' with beer and cigarettes 'for stress'. In re-examination she also agreed that her evidence (page 9 of the transcript) recorded that his drinking was related to 'the pressure he had been through mainly when he was in Western Australia when they got bombed".
Leonie Green
Mrs Green is the daughter of the deceased and of the applicant.
She said that she was close to her father and often talked to him about his service but he mainly only ever spoke to her about 'good things'. She recalled on one occasion he spoke to her about the bombing in Broome. She cannot recall how old she then was. She said that her father told her that he had been in a bunker surrounded by sandbags and was terrified. She said that he told her that he prayed very hard and attempted to crawl into three-inch gaps between the bags in order to achieve greater safety.
Mrs Green said that she was aware that her father drank alcohol heavily and on occasions he became violent. She said that he did not ever say to her that he drank beer because of his service.
In cross-examination Mrs Green recalled that her father frequently attended local football games as a spectator and then drank beer. She was aware that he drank at home and in the company of other persons. She was not aware whether he believed he drank to excess or that he regretted drinking.
Doctor Walton
The hearing resumed in Melbourne on 8 March and Mr Douglass called Dr Walton a consultant psychiatrist to give evidence. Dr Walton interviewed Mrs Smith and her daughter Mrs Green and prepared a report dated 16 August 2001.
Dr Walton concluded that there was no clear causal connection between the deceased's exposure through a bombing raid in Western Australia and his subsequent alcohol consumption. In reaching this position Dr Walton concluded that he was limited in any opinion he could express because the best evidence - from the deceased - was impossible. Nonetheless he said in evidence that he was unable to confirm or deny that there was a connection. In the event he said that the Tribunal found that the bombing raid was a "stressful event" he was satisfied that the deceased would satisfy the criteria of alcohol abuse as opposed to alcohol dependence under the applicable Statement of Principles.
With respect to the evidence heard on the first day of hearing Dr Walton said that the deceased would not necessarily be preoccupied with the stressful event. In his experience there was a high degree of variability amongst persons who do suffer a stressful event or react to a stressful circumstance. This can range between preoccupation or resisting or refusing discussion of it.
The witness noted that the deceased was reluctant to talk to his doctors about his alcohol consumption and he acknowledged that this could be a defensive mechanism by Mr Smith. He may have been reluctant to offer the "stressful event" as being explanation for his drinking pattern.
With respect to the absence of liver damage being detected at post mortem, Dr Walton said that there are a wide variety of conditions and illnesses associated with alcohol abuse. Dr Walton was of the opinion that either the deceased was resilient to other illnesses or he was not "abusing" alcohol. Nonetheless he noted that the deceased was treated for hypertension between 1987 and 1997 (as reported by Dr Booth) and it was his opinion that hypertension is a well recognised complication of alcohol abuse.
Dr Walton said he was not assisted by the deceased apparently drinking to excess in social environments. Additionally he said it did not necessarily follow that the deceased would abuse alcohol immediately after exposure to the stressful event or, in the alternative, if the deceased was a "time bomb" he may have commenced to abuse alcohol once it became available. This proposition he said is credible and is not uncommon.
On balance, Dr Walton said that "at the end of the day, we are left with a big question mark".
In cross-examination, Dr Walton acknowledged that Mrs Smith told him that her husband lived in impoverished circumstances as a child and was cared by a Aunt and a Grandmother who were a strong influence on him. He was not aware whether Mrs Smith had told him that the Aunt and Grandmother were teetotalers.
Dr Walton noted that the deceased recorded in a smoking questionnaire, (Tdocs, page 9), that he commenced cigarette smoking because of "anxiety and fear". It was acknowledged that this would be consistent with the deceased having developed anxiety and fear in service, but it could not be said according to the witness what the basis of that fear and anxiety was.
With respect to the deceased apparently being reluctant to speak of his alcohol abuse, Dr Walton expanded on the evidence given earlier. He said that in his experience, persons are reluctant to admit alcohol consumption because they are unable to control it. He regarded this as a widespread phenomenon. He said there were criminal cases that he knew of where alcohol could be a basis for a successful defence but where the consumption of alcohol is denied or concealed.
Dr Walton noted that Mrs Smith had told him that she had encouraged her husband to participate in an Anzac day event, but he had found the experience distressing. Dr Walton acknowledged that this could be an indicator of his anxiety but on that occasion only. In his experience, World War II veterans are particularly reluctant to talk about their war-time experiences, other than amongst other returned service persons. He acknowledged that there was a culture of "stiff upper lip" amongst returned male veterans.
With respect to the bombing raid in Western Australia, Doctor Walton noted that the raids occurred during night time in darkness, which he said was likely to elevate the level of fear the deceased experienced. He noted, on the documents lodged and from the information Mrs Smith provided, that the deceased was terrified and had said that he had "never prayed harder" in his life. He said this was an indicator of intense fear on the part of the deceased.
Conclusion & Reasons For Decision
Section 120A of the Act provides that a hypothesis connecting death with the circumstances of service will only be reasonable if there is a Statement of Principle in force determined under s.196B of the Act that upholds the hypothesis.
A number of Statements of Principles have been determined by the Repatriation Medical Authority that may apply to the present application. There is no dispute between the parties as to the applicable Statements of Principles or whether any one rather than another should be preferred (refer Repatriation Commission v Gorton [2001] FCA 1194). In order to determine whether the circumstances of the death of a veteran is related to service, the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 determined that there were four stages which must be followed-
"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".
With respect to the first stage there is material which points to a hypothesis connecting the service of the late Mr Smith and his death by cerebro vascular accident. That hypothesis commences with the deceased beginning to consume alcohol in service by reason of his reaction to a stressful event at Broome namely enemy bombing. Thereafter, the applicant adopted a lifelong habit of alcohol consumption in excessive quantities.
Insofar as the second stage is concerned - and for the remainder of this analysis - I have had regard only to Instrument No. 52 of 1999, entitled "Cerebro Vascular Accident". Specifically, this analysis will focus on factor 5(e) 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 cerebro vascular accident".
It follows that the second stage of Deledio is satisfied because the RMA determined a Statement of Principle under s.196B.
With respect to the third stage of the Deledio analysis, I am satisfied that the hypothesis Mrs Smith advanced is consistent with the "template" as found within the above Statement of Principle. It follows - for the following reasons - that the hypothesis is "reasonable".

Mr Douglass has conceded - and I agree with his concession (indeed I would have found in any event as a fact) - that the deceased did regularly consume an average of 250g/week of alcohol for a continuous period of at least one year immediately before the clinical onset of cerebro vascular accident. There was a consistency in the material that the deceased did regularly drink excessive quantities of alcohol since his return from service. That patten of consumption was lifelong and was existing until shortly prior to his death from a cerebro vascular accident. Put another way, there is material which points to this hypothesis, consistent with the 'template found in the Statement of Principle. I am satisfied that the clinical onset of the cerebro vascular accident was at the time that it occurred. The deceased was drinking alcohol at the above quantity for more than a continuous period of one year before the clinical onset. It follows that factor 5(e) exists as a minimum.
With respect to the fourth stage of Deledio, I understand the analysis to require findings of fact from the material heard and read.
On the one hand, the deceased was reluctant and on occasions refused to speak about his service. At no time did he ever indicate to his wife or his daughter that he drank alcohol by reason of his experiences at Broome. It may be thought in the circumstances that there is no connection between service and alcohol consumption.
However, I prefer a finding of connection having regard to the deceased as a youth being under the influence of an Aunt and a Grandmother who abstained from alcohol consumption and frowned upon others consuming alcohol. There is nothing to indicate that the deceased consumed any alcohol before enlistment. He was then exposed to an event in Broome, which may fairly and reasonably be regarded as being very stressful. He did frequently mention to his wife and his daughter that on the occasion of the bombing he "never prayed harder in his life" and had also said that "someone must be looking after him". I am of the view that these expressions by the deceased - being a person reluctant to talk about his service - are the expressions of a person who was in fear and seeking the protection that he believed could be obtained by praying and apparently acknowledging that his prayers were answered by "someone" having looked after him. That he also mentioned to his daughter that he attempted to climb between sandbags, apparently giving him protection from the bombing, is an indication also of his feeling of vulnerability. Additionally, the bombing occurred at night time, therefore in darkness.
Added to the above is the evidence of Mrs Smith, that her husband frequently suffered nightmares and would scream in his sleep. She also recalled that he had told her that he commenced to consume alcohol during service, was heavily drinking wine after he returned from service and was frequently intoxicated. Thereafter, he consumed large quantities of alcohol and was frequently drunk. On those occasions he was sometimes abusive towards her.
I am satisfied that the events in Broome were of sufficient magnitude to cause the applicant to commence a habit of excessive alcohol consumption. There is no other event or circumstance known that intervenes between enlistment and discharge. I am satisfied that an assumption or inference, is permissible to connect the episode at Broome with his subsequent alcohol consumption. There is nothing improbable or unlikely about this connection (Refer Critch v Repatriation Commission (1996) 43 ALD 574). The circumstances as above have been frequently heard in other Veterans applications. There is unfortunately nothing unusual about men who have been exposed to stressful or frightening events during military service, becoming civilians, who refuse or resist communication and who find comfort or relief from alcohol. The Administrative Appeals Tribunal hears cases of a similar type on an almost daily basis and has done so for many years.
Few veterans ever say to their wives or children words to the effect that they commenced a lifetime habit of alcohol consumption because of the events of service. Despite the absence of evidence of this type or quality I am satisfied that such a connection can exist and I am satisfied that it does exist in the present circumstance.
In all of the circumstances, I am not satisfied beyond reasonable doubt that the death of the late Greville Douglas Smith was not war-caused.
The claim must therefore succeed. The decision under review is set aside.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Katherine Navarro.........................................
  Associate
Date/s of Hearing  22 January and 8 March 2002
Date of Decision  21 June 2002
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr G Tobin
Counsel for the Respondent    Nil
Advocate for the Respondent Mr R Douglass