Somerfield and Repatriation Commission - [2001] AATA 52

DECISION AND REASONS FOR DECISION [2001] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/133

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FREDERICK TEAGUE SOMERFIELD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms SM Bullock

Date31 January 2001
PlaceSydney

Decision      The Tribunal decides that: 1.     The decision under review is set aside and the Tribunal substitutes its decision that Mr Somerfield's condition of Cardiomyopathy is war-caused and the Commonwealth of Australia is liable to pay a Disability Pension for this condition from and including 16 October 1997. 2.               The assessment of the rate of Disability Pension is remitted to the Repatriation Commission.
  ..............................................
  Ms SM Bullock
  Senior Member
Catchwords
VETERANS' AFFAIRS - Disability Pension – Whether Reasonable Hypothesis Raised – Cardiomyopathy – War-Caused Alcohol Consumption

Legislation
Veterans' Entitlements Act 1986 ss120, 120A

Cases
Repatriation Commission v Keeley [2000] FCR 532
Repatriation Commission v Deledio (1998) 83 FCR 82
Borrett v Repatriation Commission [2000] FCA 1829
Repatriation Commission v Hughes (1990) 13 AAR 34
Repatriation Commission and Law (1980-81) 147 CLR 635
Re Marshall and Repatriation Commission [1987] AATA 6267

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") from a decision made by the Repatriation Commission ("the Commission") on 25 March 1998, as affirmed by the Veterans' Review Board ("the Board"), which effectively held that there was no sufficient ground for determining that the Applicant's Cardiomyopathy was a war-caused condition.
The Application for review lodged on 29 January 1999, was heard before the Tribunal on 16 November 2000. Mr Mark Vincent of Counsel represented the Applicant, Mr Frederick Teague Somerfield. Mr Richard Wallis represented the Repatriation Commission, the Respondent in this matter.
Mr Somerfield provided oral evidence to the Tribunal. The Tribunal also took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents") and the following exhibits:

Exhibit          Description Date
T1-T16 T Documents Various
A1      Statement of Dr LL Harris.            16 November 2000
A2      Further statement of Frederick Somerfield.       29 April 1999
A3      Report of Dr R. Gertler, Consultant Psychiatrist.          18 July 2000
R1      Report of Dr D. Baron, Cardiologist.       11 April 2000
R2      Report of Mr B. O'Keefe, Consulting Historian. 5 September 2000
R3      Transcript of Veterans' Review Board Hearing held in Sydney.       12 October 1998
R4      Medical records and treatment notes from Dr D. Baron, Cardiologist.
R5      Medical records and treatment notes from Dr A. Bereny.

The relevant procedural history of this matter may be summarised as follows:

On 16 January 1998, Mr Somerfield formally lodged an application for treatment and pension in respect of "dilated cardiomyopathy" (T4).
On 25 March 1998, a delegate of the Repatriation Commission wrote to Mr Somerfield advising him that:
"The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of Cardiomyopathy. As a result I find that all the evidence does not raise a reasonable hypothesis connecting Cardiomyopathy and operational service. I am therefore unable to accept it as war caused" (T2, p7).
Following this decision, Mr Somerfield chose to exercise his right of appeal and on 29 April 1998, an application for review was lodged with the Board (T9).
The Board heard Mr Somerfield's application on 12 October 1998. A transcript of that hearing has been made available to this Tribunal and is taken into evidence, as noted above, as Exhibit R3. Further, on 12 October 1998, the Board decided to affirm the decision under review.
The Board found that:
"…
The veteran drank very little before entering the Army.
From 1941 the Veteran increased his alcohol intake to, at times, quite high levels, particularly after his return from service in New Guinea.
Upon his discharge in 1945 he entered university to study law … He ceased drinking alcohol during the three years he took to complete the (normal) four year course because of the effort he had to put into his degree course (and article work).
After his graduation and commencement of work as a lawyer, he recommenced drinking alcohol and had continued to do so until the present …" (T13, p60).
Having found this set of circumstances to be the background history of Mr Somerfield's drinking habit, the Board held that it could not find that Mr Somerfield's drinking was attributable to his war service. Accordingly it decided:
"…the Board finds that none of the minimum factors set out in the Statement of Principles is raised by the evidence in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran's cardiomyopathy is war-caused. …"
Mr Somerfield consequently lodged an application for review with this Tribunal (T1).

Issues

Mr Somerfield's claim for Cardiomyopathy raised the following issues for determination by the Tribunal:

Whether the Applicant satisfies the criteria set out in the Statement of Principles concerning Cardiomyopathy being Instrument Number 93 of 1996 such that the condition could be accepted as being related to operational service; and
If the Applicant's condition of Cardiomyopathy is found to be related to operational service, what is the most appropriate rate of assessment.
It is to be noted that the Applicant's Counsel submitted to the Tribunal that the question of the rate of Disability Pension should be remitted to the Commission for assessment.

Legislation

The legislation relevant to a determination in this matter is contained within the Veterans' Entitlement Act 1986 (Cth) ("the Act").
Section 5D of the Act deals with the definition of injury and diseases.
Section 9 of the Act deals with war-caused injuries or diseases and provides:
"
9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"

Section 13 of the Act deals with eligibility for pension.
Section 119 of the Act, which is not set out here, reflects that the decision making process under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time, and the absence or deficiency in records.
The standard of proof for Mr Somerfield's operational service is that of the reasonable hypothesis, applying subsections 120(1) and 120(3) of the Act. As relevant, subsections 120(1) and (3) of the Act provide:
"
120Standard of proof
(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.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…"

Section 120A of the Act deals with Statement of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken in accordance with any Statement of Principles issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. Section 120A as relevant states:
"
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
  (b)       the kind of disease contracted by the person; or
  (c)       the kind of death met by the person; as the case may be.
          …"

Statement of Principles

The Tribunal is required therefore to decide matters concerning operational service in accordance with any Statement of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. In Repatriation Commission v Keeley [2000] FCR 532, the Federal Court determined that the correct Statement of Principles to be applied is that which was in force at the time of the primary decision, in this case the Commission's decision of 25 March 1998. Accordingly, the relevant Statement of Principles is Instrument 93 of 1996 concerning Cardiomyopathy.
Background
Before turning to the question of the Mr Somerfield's entitlement to an increase in pension for his Cardiomyopathy and whether he satisfies the relevant Statement of Principles, it is helpful to briefly outline his general background and service history. The facts contained below are by way of background information and are not in dispute:

Mr Somerfield was born on 26 August 1921.
Mr Somerfield's father died when Mr Somerfield was only one and a half years old and his mother managed a hotel in the country; Mr Somerfield therefore lived with his grandmother in Sydney.
Prior to joining the army, Mr Somerfield was employed as an Articled Clerk at a solicitor's firm in O'Connell Street, Sydney.
Mr Somerfield entered the army on 5 November 1941, at the age of 20. He served until 10 October 1945. Because Mr Somerfield served in the South West Pacific Area, the whole of his service constitutes operational service.
Mr Somerfield has accepted war-caused disabilities of solar skin damage and peripheral vascular disease.

Evidence of Mr Somerfield

Mr Somerfield related to the Tribunal that prior to enlistment, he was working as an Articled Law Clerk at a solicitor's firm in Sydney. He told the Tribunal that at this time, he was only receiving low wages (namely ten shillings per week). Although Mr Somerfield was only sixteen or seventeen years old at the time and thus below the legal drinking age, he occasionally drank alcohol and this was almost always with a young solicitor who worked with him and was generally limited to Friday afternoons after work.
Upon entering the service, Mr Somerfield was initially stationed at Ingleburn. He told the Tribunal that a Brigade Major took him "under his wing" and accordingly, Mr Somerfield received preferential treatment in that he was able to have access to alcohol everyday. Mr Somerfield stated that he received a bottle of beer per day, which he drank before going to sleep each night and that this ration of alcohol was a privilege, considering his low rank in the army at this time and that it was not available to other soldiers at his level.
After training, Mr Somerfield began service in Australia and New Guinea as a member of 9 Field Ambulance. He stated to the Tribunal that he was still drinking alcohol and his consumption involved approximately one drinking session per week in a hotel as well as alcohol which he would get from the officer's mess, which was approximately two bottles of beer per day.
Mr Somerfield related that he was stationed to several posts during service including Brisbane, Townsville, Tolga, Atherton and New Guinea. Throughout this time, Mr Somerfield told the Tribunal that he was drinking between eight to ten midis of beer per day.
In explaining why his alcohol consumption had increased during service, Mr Somerfield noted that he was earning five shillings per day (in comparison with the ten shillings per week he was earning before enlistment) and that this extra money, coupled with the surrounding circumstances of service, enabled him to increase his alcohol consumption.
Further, alcohol was now more readily and easily available, it helped to alleviate stress, it contributed to the camaraderie amongst the men and in Mr Somerfield's words – "I drank because I liked beer".
In his written statement, which may be found at page 22 of the section 37 documents, Mr Somerfield stated:
"…
It was not until I entered the army in 1941 that I commenced the consumption of alcohol on a regular basis due to its availability, low cost and the necessity of mateship and subsequently the stress of overseas service…"
Mr Somerfield further stated, at the hearing, that once in New Guinea, the nurses gave the soldiers left over surgical spirit and they would use this spirit to make a brew which they called "jungle juice". This concoction was made up of dried fruit, fruit juice and surgical spirit. Mr Somerfield said that he and the other men in his tent drank this brew daily and that two glasses of it would leave one "staggering"; Mr Somerfield reported that he drank two glasses per day. Mr Somerfield also stated that he could not recall becoming inebriated when drinking the brew, or at any other period during his service. Further, it was Mr Somerfield's evidence that he drank the brew, which was not pleasant in taste, for companionship with the other men in his tent, to keep the "mateship" amongst them going and to alleviate the stress of service.
The Tribunal also notes Mr Somerfield's evidence that he experienced several stressful events during service. For example, the Japanese torpedoed the Centaur, a hospital ship, shortly before Mr Somerfield was due to board. The Japanese also bombed an ammunition dump nearby to where Mr Somerfield and other servicemen were stationed in New Guinea. A further horrific incident occurred when Japanese aircraft ploughed into Australian troops and Mr Somerfield, who was the Senior Officer in charge of the ambulance service, was responsible for attending to over 100 dead and wounded. Mr Somerfield stated to the Tribunal that it took between one to two days to transport the wounded onto the ship; many of them were suffering severe burns, their skin and hair were blackened and some had their eyes burned out. Mr Somerfield stated that the smell of burnt flesh and the sight of all those who had died and the task of helping the wounded, haunted him for many years afterwards.
Returning to the account of his drinking, Mr Somerfield reiterated that throughout service he drank approximately eight standard drinks per day, mainly beer but also wine when it was available. When beer or wine were not available, Mr Somerfield drank the brew of "jungle juice", which he and the other men had concocted. Throughout his evidence to the Tribunal, Mr Somerfield emphasised that he liked to drink. He also stated that the alcohol helped to alleviate any stress, which he incurred from time to time in carrying out his duties.
Mr Somerfield also related to the Tribunal that after his discharge from the army in 1945, he resumed his Articles of Clerkship and enrolled at Sydney University Law School. Both his university and his employment were located in the central business district in Sydney. Mr Somerfield pointed out that being in the centre of the city meant that he was surrounded by hotels. Mr Somerfield told the Tribunal that he would drink alcohol at these hotels after work and that he "particularly enjoyed the taste of Cascade beer".
However, Mr Somerfield also stated that his drinking was now limited to one hour per working week; during this hour he drank approximately four schooners of beer. During the weekend, Mr Somerfield drank on Saturday afternoons at the Randwick Royal Hotel.
The Tribunal notes, however, that in his written statement, which was tendered at the hearing and taken into evidence as Exhibit A2, Mr Somerfield wrote that upon resuming his employment:
"I formed a friendship with one young employed solicitor in the office, and we used to drink beer together after work each afternoon".

Mr Somerfield further wrote that after he and his friend consumed two or three pints of beer, he would return home, where he lived with his mother. During the three to four year period when he studied law, he estimated that his weekly alcohol consumption was in the range of 12 to15 pints of beer or 25 to 30 standard drinks per week.

Mr Somerfield then related to the Tribunal that he was married in January 1948. In 1949, he was admitted to practice as a solicitor. Following his being admitted to practice, Mr Somerfield said that his wages were increased and therefore his alcohol consumption did too. He said he continued to drink a few beers after work each day and continued to drink on Saturday afternoons and on the weekends when socialising with friends.

Mr Somerfield also stated to the Tribunal that in February 1958, he joined the Rose Bay Returned and Services League ("RSL") Club. He stated that this fact affected his drinking in that he now stopped at the RSL on his way home from work everyday. Mr Somerfield spent approximately one to one and a half hours there and he consumed approximately four schooners of beer.
Mr Somerfield said that he did not begin to drink at home until the 1970's. Mr Somerfield also stated that in the 1970's, he became the "Honorary Solicitor" of the Rose Bay RSL and this entailed him being at the RSL to welcome new members and also involved him receiving free beer.
The Tribunal also had regard to Mr Somerfield's written evidence in this respect where he stated that:
" After my retirement from work in 1989 my alcohol intake increased as work did not act as a deterrent. I also became actively involved in the R.S.L. Sub-Branch and Club and this, together with social engagements, increased my intake markedly sometimes doubling my benchmark" (T4, p22).
Mr Somerfield concluded his oral evidence by saying that he continued to drink beer throughout the 1970's, 1980's and 1990's until he was diagnosed with Cardiomyopathy in September 1997. Since his condition of Cardiomyopathy has been diagnosed, Mr Somerfield said that he continues to drink but at a much-reduced rate. For example, Mr Somerfield said he meets with his wife daily at 4pm and they drink whisky together.
In relation to the evidence adduced from Mr Somerfield during cross-examination of him by the Respondent, Mr Somerfield was asked whether he could recall drinking "for any other reason other than the fact that you enjoyed it"? Mr Somerfield replied "not that I can recall". Further, when asked why he drank the "jungle juice" despite the fact that it was, on his own account, not very pleasant and that it tasted "like rubber", Mr Somerfield simply stated that it was the comradeship of drinking which he enjoyed.
Further, during cross-examination, Mr Somerfield was shown the transcript of his hearing at the Veteran's Review Board and questioned with respect to the information which he gave the Board at the time. Mr Somerfield acknowledged that the answers, which he gave to the Board, were not an accurate reflection of his drinking pattern. Mr Somerfield stated that there was not really any cessation of his drinking after his discharge from service (which contradicts the finding of the Board that Mr Somerfield ceased drinking upon his return from war because of the efforts he had to put in to complete his university studies).
Mr Somerfield reiterated that he continued drinking after his return from the war because he liked to drink and it helped him to relax, however, he never considered himself addicted to alcohol. In written evidence, Mr Somerfield stated:
"I deny that in my evidence to the Board, which is under review, I said that I had ceased drinking alcohol during the period after my discharge from the army in or about October 1945, to when I was admitted as a Solicitor in 1949" (Exhibit A2).

Further Evidence
Evidence of Dr L Harris

Dr Harris attended the hearing and gave evidence on behalf of Mr Somerfield, in a lay capacity, as Mr Somerfield's friend and not in his capacity as a medical practitioner. Dr Harris' written statement was tendered and taken into evidence as Exhibit A1.
In his oral evidence, Dr Harris stated that it was on his suggestion that Mr Somerfield applied to have his condition of Cardiomyopathy accepted as a war-caused condition. Dr Harris spent some 25 years on various tribunals and thus felt he had a broad experience in assessing claims of this kind.
Dr Harris gave evidence that he met Mr Somerfield at the Rose Bay RSL Club in 1958. Dr Harris said that between 1958 and 1983, he would frequent the RSL Club approximately three times per week and would always see Mr Somerfield there. In 1983, Dr Harris retired from medical practice. He then visited the RSL Club more frequently and he saw Mr Somerfield there more frequently.
Dr Harris said that he had also served in the army and that he and Mr Somerfield would sometimes discuss service in a general sense, noting however, that RSL members did not usually discuss the details of their service in depth. Nonetheless, Dr Harris said that Mr Somerfield had told him that he had had a hard time in the army and that Mr Somerfield also told Dr Harris about the "jungle brew" in New Guinea.
Dr Harris stated that it was well known at the RSL that Mr Somerfield was a heavy drinker. Dr Harris stated that Mr Somerfield would always drink in a group at the RSL and that it appeared to Dr Harris that Mr Somerfield needed to drink. To substantiate this latter statement, Dr Harris gave the example that whereas a social drinker is generally satisfied with drinking wine during dinner, Mr Somerfield would always drink before dinner and continue to drink after dinner as well. Even when the others at the club had already left for the night, Mr Somerfield would have some more drinks before going home. Dr Harris reiterated that Mr Somerfield "seemed to need to drink".
Dr Harris gave evidence that he observed that Mr Somerfield was often inebriated at the RSL and that he would often see Mr Somerfield carrying alcohol to take home, however, he never discussed this with him. Dr Harris also stressed that he never provided Mr Somerfield with professional advice about his alcohol consumption – he just observed.

Evidence of Dr R Gertler, Consultant Psychiatrist

Dr Gertler gave evidence by conference telephone. A report prepared by Dr Gertler, dated 18 July 2000, was also tendered by the Applicant (Exhibit A3). Dr Gertler had examined Mr Somerfield for the purpose of providing a medicolegal assessment.
During his telephone evidence to the Tribunal, Dr Gertler opined that although Mr Somerfield had cited "camaraderie" as his main reason for drinking, the real reason was because he had become used to alcohol and he was dependent on it; it helped him cope with the stresses of service and particularly, in his role as a field ambulance officer.
Indeed, Dr Gertler opined that the fact that Mr Somerfield drank the "jungle juice" even though it was unpleasant, indicates he was drinking not just because he enjoyed it but because he needed to. Dr Gertler stated that the efforts that Mr Somerfield went to in making the "jungle juice", highlight that Mr Somerfield was engaged in "alcohol seeking behaviour" and had become habituated to drinking alcohol.
Dr Gertler further opined that the fact that Mr Somerfield continues to drink alcohol, despite being diagnosed with Cardiomyopathy, indicates that he needs to drink, in order to satisfy his habit of alcohol consumption. Thus it is not just a matter of Mr Somerfield liking to drink alcohol but the fact that he is addicted to it.
Dr Gertler also stated that, in his opinion, there is a possibility that Mr Somerfield is underestimating the quantities of alcohol that he consumes.
In response to questioning by Mr Wallis, Dr Gertler stated that to a large extent, Mr Somerfield has been able to control his consumption of alcohol. When questioned as to whether Mr Somerfield had an overriding need for alcohol, Dr Gertler opined that his "need " is evidenced in the drinking of "jungle juice" during the war. However, since that time, Mr Somerfield has never had a "need" as such because alcohol has always been available to him. Dr Gertler also stated that to his knowledge, there has never been a period when Mr Somerfield stopped drinking.
In his report, Dr Gertler noted:
"Mr Somerfield commenced drinking alcohol on a regular daily basis when he first entered the service in 1941….
His alcohol consumption continued after discharge from the army at a level of 4 schooners of beer a day and more on weekends. That level of consumption continued unabated for some 40 years.
As such, Mr Somerfield consumed in excess of 500 grams of alcohol a week or in excess of 250 kilograms of alcohol within any ten year period of that 40 years".
Accordingly, Dr Gertler opined that Mr Somerfield satisfies factor 5(b) of Instrument No 93 of 1996, concerning Cardiomyopathy. Further, Dr Gertler concluded:
"In my opinion, Mr Somerfield's regular heavy drinking commenced during his period of service and continued after his discharge from service…There is therefore, in my opinion, a reasonable hypothesis relating to causation between Mr Somerfield's alcohol consumption and the development of his cardiac condition".

Evidence of Dr D Baron, Cardiologist

Dr Baron provided a report dated 11 April 2000 (Exhibit R1). Dr Baron is Mr Somerfield's treating Cardiologist. In his recent assessment Dr Baron reported:
"…
He drank four schooners a day but I suspected at the time he was drinking a good bit more and had probably done so since he started drinking during World War II…
Mr Somerfield has a dilated cardiomyopathy due to excessive alcohol intake over many years. He also has chronic liver disease with acute hepatomegaly. His prognosis is poor and because of his extreme limitation in doing basic chores such as showering and dressing himself I would consider him to be at the level of 1-2 Mets according to the scale listed in G.A.R.P ".

Evidence of Mr Brendan O'Keefe, Consulting Historian

Mr O'Keefe provided a report dated 5 September 2000, detailing the issue of alcohol to Australian army personnel in Australia and New Guinea during World War II, and about the availability of "jungle juice" and other alcohol supplies during the time that Mr Somerfield served there (June 1943 - July 1944) (Exhibit R2).
Mr O'Keefe reports, inter alia, that:
"There is nothing in the published history of 9 Field Ambulance about the availability of alcohol in the unit's camps in Australia, but there are two references to alcohol in the unit's war diary during 1942. The first appears as an appendix to the war diary for April 1942 when the unit was based at Wallgrove in western Sydney. The Orders refer inter alia to the unit's wet canteen at the camp and deal with the canteen's hours of operation. The canteen was open from Monday to Saturday inclusive from 1630 to 1730 hours and from 1830 to 2130 hours; on Sundays, it was open from 1845 to 2130. The Orders do not indicate how much beer each member of the unit was allowed to purchase per day or week.
The other reference to alcohol in the unit's war diary again occurs in Routine Orders issued on 12 July 1942 and included as an appendix to the diary for that month. Taking their cue from the 1st Australian Army's Routine Orders of 24 June 1942, the unit Orders are headed "Restrictions in Relation to the Possession and Consumption of Liquor" and impose strict controls on consumption of alcohol by soldiers in public places. This concern over soldiers' alcohol consumption outside camps implies that it was strictly controlled within camps, as well" (at page 2).
In relation to "jungle juice", Mr O'Keefe confirms that "The history of 9 Field Ambulance contains many references to the brewing of "jungle juice" in the unit in Wau and Busu near Lae in 1943-44" (at page 2). Mr O'Keefe reports that although the brewing of alcohol was against military regulations, the CO of the unit was well aware that members were secretly making brews and he turned a blind eye towards it as long as soldiers did not drink too much. Further, "No doubt, the soldiers themselves realised that any excessive drinking or drunkenness would have prompted the CO to put a stop to the brewing" (at page 3).
Mr O'Keefe further states that recollections compiled in "Soldiering on in Papua New Guinea: 9th Australian Field Ambulance (A.I.F) 1939-45: an oral history" by Richard Raxworthy, suggest (in Mr O'Keefe's opinion) that "unit members were not used to consuming much alcohol and that in particular they had not been drinking great quantities of the unit's 'jungle juice' ".
Submissions
Mr Vincent, Counsel for the Applicant, submitted that while Mr Somerfield had consumed minimal alcohol before service, his alcohol intake was greatly increased due to service, including the stressful time he experienced in New Guinea. This submission which was put to the Tribunal at the hearing, was also expressed at paragraph 10 of the Applicant's written submission:
"The Applicant contends that he commenced a drinking habit in 1941 following his entry into the Army, that the habit resulted from circumstances surrounding service, that the habit became entrenched and that this resultant consumption of alcohol over the years met the criteria set out in the factor at sub-paragraph 5(b) of Statement of Principles no. 19/1998 in respect of secondary cardiomyopathy".
In Mr Vincent's submission, it is also clear from the evidence that there was no cessation in Mr Somerfield's drinking habit since his return from service. Indeed, Mr Vincent contended that the Board was incorrect in finding that Mr Somerfield ceased drinking alcohol during the three years he took to complete his law studies. In this respect, Mr Vincent sought to rely upon Mr Somerfield's further written statement (Exhibit A2), in which he outlines the nature and extent of his drinking during those years.
Mr Vincent thus submitted to the Tribunal that the evidence establishes that Mr Somerfield commenced drinking as an established habit in the army and there is nothing in the evidence, which suggests that such a proposition is unlikely. Further, in terms of establishing a link between service and consumption, Mr Vincent contended that the evidence shows a quickly increasing level of consumption of alcohol, which has continued, at a high level, virtually unabated until the present day.
Mr Vincent also pointed out that the Respondent does not dispute the quantum of alcohol consumed by Mr Somerfield.
Mr Vincent referred the Tribunal to Repatriation Commission v Hughes (1990) 13 AAR 34 which dealt with a claim for a War Widow's Pension. Mr Hughes had died from carcinoma of the pancreas, which was claimed to be as a result of a war-caused smoking habit. Mr Vincent argued that it matters not that that case dealt with a smoking habit, rather than alcohol consumption as is relevant in Mr Somerfield's case. The principal raised by that decision is that if a veteran commenced, for example, smoking or drinking during war service, then a hypothesis arises that the development of the habit was causally related to the war service (at page 38). Whether a causal connection exists is then tested under subsection 120(1) of the Act.
Referring to Re Marshall and Repatriation Commission [1987] AATA 6267 Mr Vincent noted that the same principles apply in Mr Somerfield's circumstances, contending that the connection between alcohol consumption and service was more than temporal or circumstantial, it was also of a causal nature.
The Tribunal was further referred to the High Court decision in Repatriation Commission and Law (1980-81) 147 CLR 635. Noting Aickin J's discussion at page 647 of a "heavy burden of disproof" upon the Tribunal in such matters, it was thus submitted that the Commission must exclude the possibility of any reasonable inference from any of the evidence which would support a decision in favour of the claimant.
Further, the reasoning in Law's (supra) case suggests that the question is not whether the Tribunal is satisfied that a causal relationship exists between Mr Somerfield's war service and his drinking habit but whether that relationship has been excluded beyond reasonable doubt.
Moving to the next leg of his argument, Mr Vincent conceded that in Mr Somerfield's circumstances, a high level of alcohol consumption after service may have been attributable to an increase in opportunity and money, nevertheless he submitted that this is still within the boundaries of the hypothesis contained within the relevant Statement of Principles.
Mr Vincent contended that the simple fact that a habit of alcohol consumption occurred during service and arose for reasons including as a response to stress, availability and mateship is enough to meet the criteria; it is not necessary to prove that Mr Somerfield experienced particular stressful events during his service as might be defined in various other Statement of Principles.
Mr Vincent contended therefore that a reasonable hypothesis is raised within the meaning of subsection 120(3) of the Act.
With regard to Mr Somerfield's characterisation of his drinking, namely that he simply "liked to drink alcohol", Mr Vincent submitted that it is likely that Mr Somerfield is severely underestimating the quantity of alcohol which he consumed and its impact upon him; a proposition which is supported by the evidence of Dr Gertler.
Mr Vincent also submitted that Mr Somerfield's account does not disprove that he has a habit of high level alcohol consumption, particularly as he drank the "jungle juice", which he did not enjoy and he drank it nonetheless.
Mr Vincent thus submitted that the facts of Mr Somerfield's circumstances do not disprove the reasonable hypothesis; namely, Mr Somerfield drank on service, where his habit developed. His evidence was that he drank because of a number of factors including stress and availability of alcohol. Further, even if the Tribunal found he decreased his consumption during legal studies, this does not diminish the fact of a service-related alcohol habit. In any event, Mr Vincent noted the Transcript of the Board's hearing at page 26 (Exhibit R3), where Mr Somerfield told the Board that while concurrently studying and working at his former employer's legal firm his drinking "was very slight" and while the Board made much of this evidence it appears not to be accurate given Mr Somerfield's evidence to the Tribunal. Mr Vincent urged the Tribunal to take into account Mr Somerfield's age, poor memory and various objective medical and other evidence that Mr Somerfield underestimates his alcohol consumption.
Lastly, Mr Vincent drew the Tribunal's attention to section 119 of the Act. Subsection 119(1)(h) states:
"…
(h) [The Tribunal] …shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time …".
In his submissions on behalf of the Respondent, Mr Wallis contended that the Respondent agrees with the diagnosis of Cardiomyopathy and that the onset of the condition was in 1997. Mr Wallis contended, however, that Mr Somerfield already had an established pattern of drinking, which commenced at the age of 16 and increased following Mr Somerfield's entry into service at the age of 20. Mr Wallis conceded that although Mr Somerfield was not drinking large quantities of alcohol before he commenced service, the question of quantity is not necessarily the foundation for a habit and thus Mr Somerfield could have already established an alcohol habit before he enlisted, albeit on small amounts of alcohol.
Mr Wallis submitted that the real issue for determination by the Tribunal centres upon whether Mr Somerfield ceased drinking directly after service in order to complete his law studies and the findings in that respect of the Veterans' Review Board. In written submissions Mr Wallis contended:
"The Respondent contends that the causal connection between the Applicant's alcohol consumption and operational service is substantially diminished if not broken by the fact of the Applicant's ability to reduce alcohol consumption during the post-war period of study for a law degree".
Accordingly, Mr Wallis submitted that the post-war alcohol consumption undertaken by Mr Somerfield was a matter of choice, which was unrelated to service and therefore also unrelated to another war-caused condition.
Further, Mr Wallis asked the Tribunal to accept that the highest at which one could put Mr Somerfield's evidence, is that a temporal relationship exists between the fact of his post-war alcohol consumption and his operational service.

Mr Wallis concluded that no reasonable hypothesis exists to link Mr Somerfield's Cardiomyopathy to his operational service.
Mr Wallis further stated that it is the Respondent's submission that Mr Somerfield's alcohol consumption would have continued and increased even without the interruption of war because, put bluntly, Mr Somerfield simply enjoys drinking alcohol.
Indeed, Mr Wallis submitted that a further difficulty in establishing war-caused alcohol consumption is Mr Somerfield's repeated assertion in evidence that he liked drinking alcohol. In addition, there could be no suggestion, on the evidence, that Mr Somerfield had an alcohol dependency as defined in the Statement of Principles because Mr Somerfield does not meet the diagnostic criteria. In the Respondent's submission, if indeed there was any alcohol dependency, this occurred outside Mr Somerfield's service and arose out of the exercise of personal choice.
Mr Wallis stated that he did not wish to address the authorities cited by the Applicant's Counsel.
Findings
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions, the legislation and case law.
The Tribunal found Mr Somerfield to be cooperative in the provision of his evidence. There were some gaps in his memory and at times it was difficult for the Tribunal to be satisfied as to the accuracy of Mr Somerfield's recollection. The Tribunal did not consider this to be indicative of a lack of credit or an attempt to mislead the Tribunal.
In reaching a determination as to whether or not Mr Somerfield's condition of Cardiomyopathy is war-caused, the Tribunal has gained some guidance from the Repatriation Commission v Deledio (1998) 83 FCR 82 in which the Full Federal Court set out the steps to be taken in determining whether an incapacity, injury, disease or death was war-caused.
In Mr Somerfield's case there is a general hypothesis put that his alcohol consumption caused his condition of Cardiomyopathy. The Tribunal does not consider this hypothesis fanciful or beyond the realms of scientific possibility. In order to determine whether or not this hypothesis is reasonable the Tribunal must turn to consider the relevant Statement of Principles, Instrument Number 93 of 1996 concerning Cardiomyopathy. The factor submitted as relevant and accepted as being relevant by the Tribunal is factor 5(b) which states:
"(b) for men, drinking at least 250kg of alcohol (contained within
alcoholic drinks) within any 10 year period before the clinical
onset of secondary cardiomyopathy; or…"

The Tribunal is of the view that Mr Somerfield certainly had an alcohol consumption of 250 kilograms of alcohol within any 10-year period before the clinical onset in 1997 of secondary Cardiomyopathy. This level of consumption is supported by Dr Gertler's opinion. The Respondent concedes this point and further accepts the diagnosis of the condition and its onset.
The Tribunal must consider, however, the issue of whether Mr Somerfield's alcohol consumption is related to service. It is clear to the Tribunal that Mr Somerfield consumed alcohol before service, however, the Tribunal finds that the level of consumption was light, constrained by Mr Somerfield's age and limited financial means. On service, however, Mr Somerfield certainly had greater access and availability of alcohol, initially greater than that available to his peers because of his posting. In New Guinea, the Tribunal finds that Mr Somerfield's service in the 9th Ambulance was stressful and that alcohol was available in the conventional form and in the form of "jungle juice". Mr Somerfield drank to ease this stress, to relax with mates and because it was available.
Availability of alcohol and a temporal connection of alcohol consumption to service are certainly present in this case. However, the nature of the service and the stress, which the Tribunal accepts existed despite the fact that Mr Somerfield did not articulate this as his main cause for drinking, combine, in the Tribunal's view, to establish a war-caused alcohol consumption.
Accordingly, the Tribunal finds that factor 5(b) of the relevant Statement of Principles is met and a reasonable hypothesis raised within the meaning of subsection 120(3) of the Act.
The Tribunal then turned to consider subsection 120(1) of the Act to ascertain whether or not it can accept sufficient of the facts as are necessary to support the raised hypothesis.
The Respondent has asked the Tribunal to consider that Mr Somerfield's consumption of alcohol has only a temporal connection to service and that the higher levels of consumption post service relate to Mr Somerfield's choosing to drink alcohol as a part of an already established drinking pattern prior to service. In the Respondent's submission, Mr Somerfield's evidence that "he likes to drink" also indicates a matter of choice and not a causal relationship between service and alcohol consumption.
The Tribunal has carefully considered the submissions of the Respondent and accepts that Mr Somerfield consumed alcohol before service, but on the evidence available to it and noting Mr Somerfield's age prior to service, living situation and financial circumstances, the Tribunal does not consider that such alcohol consumption was on a regular basis or as part of an established pattern.
Mr Somerfield did have service prior to going to New Guinea and he was exposed, because of his posting, to greater quantities of alcohol than was usual for his peers. His drinking increased because a superior officer provided him with extra beer. There has been no evidence provided to dispute the finding that in New Guinea, Mr Somerfield's duties were stressful and he drank to relieve the stress. There is evidence that Mr Somerfield was consuming "jungle juice" before the occurrence of the particular stressful occasions Mr Somerfield relayed to the Tribunal, however, such evidence does not disprove, in the Tribunal's view, that in general terms Mr Somerfield's experiences in the Ambulance service were stressful.
Further, the issue of Mr Somerfield's statement that he liked to drink, in light of Dr Gertler's uncontested opinion, could be inferred on the evidence to relate to "a need", rather than the reason for consumption being an exercise of choice. As has been found in Borrett and Repatriation Commission [2000] FCA 1829, the fact that Mr Borrett may have consumed alcohol for non-service-related reasons, such as pressure at work, maintaining goodwill with clients or as a means of relaxation is not inconsistent with an alcohol consumption habit established on service.
In relation to there being a significant three to four year break in Mr Somerfield's alcohol consumption post service when he was studying law, Mr Somerfield's statement of 29 April 1999 (Exhibit A2) is relevant and refutes this break in consumption. Further, the Tribunal notes that the Transcript of the Board's hearing at page 26 (Exhibit R3) seems to support Mr Somerfield's recent written statement. Thus the Tribunal does not consider that there was a break in Mr Somerfield's alcohol consumption and considers that if there was a decrease, it was not to the level as would prove factually fatal to the existence of the reasonable hypothesis.
In all the circumstances and for the reasons set out above, the Tribunal is not satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act that there is sufficient reason for determining that Mr Somerfield's condition of Cardiomyopathy was not war-caused.
Accordingly, the decision under review is set aside and the Tribunal substitutes its decision that Mr Somerfield's condition of Cardiomyopathy is war-caused and the Commonwealth of Australia is liable to pay a Disability Pension for this condition from and including 16 October 1997. The assessment of the rate of Disability Pension is remitted to the Commission as the Tribunal has insufficient material on which to assess Mr Somerfield's condition of Cardiomyopathy.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of SM BULLOCK
Signed:         .....................................................................................
  Sharonne Brainenberg, Associate.
Date of Hearing  16 November 2000
Date of Decision  31 January 2001
Counsel for the Applicant              Mr M Vincent
Solicitor for the Applicant              Mr D Somerfield of David Somerfield and Co.
Advocate for the Respondent       Mr R Wallis, Solicitor, Department of Veterans' Affairs