Thiselton and Repatriation Commission (Veterans' entitlements)

Thiselton and Repatriation Commission (Veterans' entitlements) [2018] AATA 237 (16 February 2018)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/5846 and 2017/0855
Re:Ian Thiselton
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:16 February 2018
Place:Brisbane

The Tribunal:
(a)sets aside the decision of the Veterans’ Review Board of 21 September 2016 that denied liability for a pension for the veteran’s claimed conditions of hypertension and ischaemic heart disease;
(b)substitutes a decision that the veteran suffered or suffers from defence served related hypertension and ischaemic heart disease;
(c)remits these matters to the Respondent for all necessary action;
(d)affirms the decision of the Veterans’ Review Board of 3 February 2017 denying liability for a pension for the claimed condition of adjustment disorder.

...........................[SGD].............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – whether the veteran’s conditions were defence caused – alcohol drinking habit developed during periods of service in closed camp – hypertension – ischaemic heart disease – adjustment disorder
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Re Fisher and Repatriation Commission (2006) 93 ALD 257
Re Lindsay and Repatriation Commission (1995) 39 ALD 108
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
Statement of Principles concerning Hypertension, No. 64 of 2013
Statement of Principles concerning Ischaemic Heart Disease (Balance of Probabilities), No. 2 of 2016
Statement of Principles concerning Adjustment Disorder (Balance of Probabilities), No. 24 of 2016
REASONS FOR DECISION
Deputy President J Sosso
16 February 2018
INTRODUCTION

Mr Ian Thiselton (the veteran) applies to the Tribunal for a review of two decisions of the Veterans’ Review Board (the Board):
(a)The Board’s decision of 21 September 2016 which affirmed a determination of the Repatriation Commission (the Commission) of 14 March 2014 denying liability for a disability pension under s 70(1)(b) of the Veterans’ Entitlements Act 1986 (the Act) for the claimed conditions of hypertension and ischaemic heart disease; and
(b)The Board’s decision of 3 February 2017 which affirmed a determination by the Commission of 22 July 2016 denying liability for a disability pension under the Act for the claimed condition of adjustment disorder.
The veteran contends (Applicant’s Statement of Facts and Contentions (ASFC) at para 3):
(a)he developed an alcohol drinking habit of at least 500 g per week as a result of his defence service;
(b)his alcohol consumption was a cause of developing hypertension and subsequently ischaemic heart disease; and
(c)his stressful defence service was a cause of him developing a chronic adjustment disorder with anxiety and depression.
The veteran is currently 65 years old and enlisted in the Australian Army on 23 February 1971 when he was 18 years of age. His defence service for the purposes of the Act was between 7 December 1972 and 27 February 1995.
The veteran served as a draughtsman in the Survey Regiment, rising to the rank of Warrant Officer Class 2 on 11 January 1989 – Exhibit 1 T4.1 pp. 38 – 39.
The veteran underwent basic training at Kapooka and then completed a trade training course to qualify as a Topographic Draughtsman in Bonegilla, Victoria – Exhibit 1 T4.1 p.43. The veteran served at Bonegilla from 1971 – 1974 and was then posted to the Army Headquarters Survey Regiment at Bendigo between 1974 and 1976.
From April 1976 until September 1978 the veteran served at the Land Warfare Centre (LWC) at Canungra, Queensland.
The Medical Examination Record of 22 January 1971 at the Recruiting Centre, Adelaide disclosed that he was 5’ 11” tall, weighed 167 lb, had no abnormalities and had a blood pressure reading of 140/85 – Exhibit 1 T3 p. 29.
By 6 April 1973 the veteran had increased his weight to 85 kg (187 lb) but his blood pressure reading was 140/80. He was described by the Medical Officer as “slightly overweight” – Exhibit 1 T3 p. 30.
The next periodic medical examination occurred on 11 November 1976 whilst the veteran was serving at Canungra. By this time the veteran weighed 94.5kg and the examining Medical Officer noted “14% overweight”. His blood pressure reading, however, remained stable: 140/85 – Exhibit 1 T3 p. 27.
On 21 May 1977, the veteran married and he and his wife (Mary-Ann) moved first to Main Beach, and after two months, to a farm cottage at Canungra – Exhibit 1 T4.1 p. 44.
From 15 – 22 May 1978, the veteran was admitted to 1 Military Hospital for investigation of hypertension. The In Patient Summary provides the following information: Exhibit 1 T4.1 pp. 49 – 50:
“PRESENTING SYMPTOMS
Referred for investigation of Hypertension 1/12 history with treatment with Diuretics. Initially Paroxysmal Nocturial Dyspnoea. No other significant symptoms. Has noticed Nocturia in past 3/12 once/night. No polyuria or polydipsi…
HABITS Alcohol 50 oz/d   Smokes   No APCs….
PHYSICAL FINDINGS
Obese 93 kgs. 30% overweight.
Reddish face. Nails pale. Sweaty palms.
Slight Ankle Oedema. No Clubbing. No Nodes. Thyroid
BP       150                160
120                 120”
After Canungra, the veteran was posted to Bendigo (1978 – 1980), Bonegilla (1980 – 1984), back to Bendigo (1984 – 1990), then to Adelaide and finally again to Bendigo where he was discharged at his request on 27 February 1995: Exhibit 1 T4.1 pp. 38.
A hearing was convened in Brisbane on 18 December 2017. The veteran appeared in person and was represented by Mr Anthony Harding of Counsel. The Respondent was represented by Ms Katherine McGree of Counsel. The veteran and his wife, Ms Mary-Ann Thiselton, gave evidence as did Dr Perce Tucker and Dr Frank Varghese. Both Dr Tucker and Dr Varghese are experienced psychiatrists. The Tribunal was also presented with a statement from Mr Peter Bates-Brownsword (Exhibit 12) who served in the Army from 1956 until 1990. Mr Bates-Brownsword also gave oral evidence at the hearing.
ISSUE TO BE DETERMINED
It is not contested that the issue to be determined is whether the Respondent is liable for the claimed conditions of hypertension, ischaemic heart disease and adjustment disorder under s 70(1) of the Act.
STATEMENTS OF THE VETERAN
The Tribunal admitted into evidence two statements of the veteran. The first is dated 8 December 2014 (Exhibit 1 T5.1 pp. 147 – 153) and the second 8 March 2017 (Exhibit 6).
For present purposes lengthy extracts from the more recent statement are set out below – Exhibit 6:
“3. I confirm that after completing basic training at Kapooka, I was posted to the School of Military Survey at Bonegilla, Victoria for trade training as a Topographic Draughtsman.
4. I further confirm the closed camp basis of my trade-training course which occupied approximately 20 weeks. It was during my trade-training course that (although under the then legal age), I commenced to drink alcohol excessively to deal with stress. Alcohol was readily available to all students, cheap and as we had no other recreational opportunities other than to drink in what was referred to in the Army as ‘the boozer’. When I say alcohol was readily available, the boozer was located in between our accommodation and the dining mess where we ate. It was effectively on our ‘doorstep’.
5. My first posting was to the Detachment of the Army’s Survey Unit which was co-located with the School of Military Survey at Bonegilla…
7. My drinking during this period was as a response to stress incurred in the workplace. Despite being caught with alcohol in my room, I continued to drink in barracks regularly a 6 pack a night and I also drank in the boozer. Sometimes on our way to the dining mess, we never got past the boozer.
8. …there was stress in the job at Bendigo, which was exacerbated by having to perform rostered duties as a Mess Steward in the Sergeant and Officers Messes. That also presented an opportunity to drink to excess on those occasions when I was rostered as a Mess Steward because we had very easy access to alcohol and were encouraged to drink it as small consolation for being rostered and to entice continued bar service after designated closing time.
9. During this period at Bendigo, I found that I was drinking nearly every day and some days more than others. This included weekends. There was always stress in the job to get work completed to a very high standard. Drinking alcohol was not only a means of recreation but, more importantly, a release from the pressure of work where I could complain to my fellow mapmakers of equal rank.
10. Mapmaking is a fastidious task with complex and different specifications for different map series and where we simply were not able to make mistakes nor allow logic errors to pass for a variety of reasons. These tasks were generally multi-colour topographic maps so that if you made a mistake or an error was detected, the printed maps had to be destroyed and you had to resolve the mistake or error and printed again. The cost and time delay involved was prohibitive. So we were under great pressure to get it right the first time but within a tight timeframe.
11…As at Bonegilla, in Bendigo there was again strong peer pressure to drink alcohol regularly, the ready availability of very cheap alcohol and there was always continuous work pressure. During my entire time at Bendigo on this occasion, I cannot remember ever entering the home of a civilian. I was entirely surrounded by Army personnel 24/7 and I was immersed in the Army drinking culture of the time.
12…LWC (Canungra) was a high profile and high intensity training environment and one quite different from where I had worked previously where I was amongst my peers and my fellow Survey Corps members. Demands for work came from all directions, that is, from a number of diverse units and sub-units at the Land warfare Centre (LWC), and these work orders were expected to be filled. By this time I had been promoted to Corporal. However, I was near the bottom of the ‘food chain’ as far as rank was concerned (my rank entitled me to the cleaner handle on the garbage bins).
13. My section, which was known as the Drafting Office was part of the Training Wing and the Officer Commanding (OC) Training Wing was at the rank of Major. The OC at the time of my arrival was MAJ C who was a hard and uncompromising Officer who made unreasonable demands upon my section, mainly in the preparation of materials for training. The volume of work during this time was so great that I seldom had the opportunity to take advantage of the traditional Wednesday recreational/sport afternoons; on many occasions, I would work overtime and, on occasions, weekends to complete the work. The work volume became so bad that I had to seek permission to defer my taking of annual leave in order to meet the demands of my position and the section generally…
14. Whilst at LWC I continued to drink alcohol most days because I’d found it was an excellent means of release from the pressures and stresses of work. I felt isolated being away from a Corps of Survey unit and I was physically isolated because Canungra itself was a physically isolated location…Kokoda Barracks (LWC) were located about two kilometres east of Canungra township…
15…There were few recreational opportunities offered an Canungra. Drinking alcohol was one of them. The choices were the Canungra Hotel, a small RSL club and the local Lawn Bowls club. Both the RSL and the lawn bowls club operated within restricted trading hours and required membership. This made the Canungra Hotel more attractive. Furthermore, it also encourage drinking at LWC in the wet canteen itself, particularly when we were isolated by floods…
…
17. Another aspect of my sense of isolation was that I was over 2000 kilometres away from my next of kin who lived in Adelaide. I was also professionally isolated from my own Corps. AI was the senior member of the Survey Corps at LWC providing my specific trade skills, advice and solutions for the rest of LWC, including Officers up to and including the rank of Colonel. It was a great deal of pressure for a young Corporal.
18. The isolation from my peers made the work pressure greater because I had no one to whom I could turn to solve problems or to seek guidance on how to deal with some technical issue…
…
29. During this period at LWC I was not sleeping well, frequently waking during the night and not being able to return to sleep due to anguish about how I might be able to improve the work situation. In an effort to get sufficient sleep, I would drink alcohol to a degree that I often collapsed into bed intoxicated and slept throughout the night.
30. I found I enjoyed the environment of the Canungra Hotel and I would drink there probably 4 nights out of every week. I would normally attend sometime after the evening meal and stay until closing. That could be for as long as a period of 5 hours. During that time, I would drink steadily probably up to 4 pots of beer every hour. I also drank at the Canungra Hotel on weekends, especially the Sunday sessions. Sometimes I would go with others down to the Gold Coast as the pubs and clubs there had different session times on Sunday.
31. I met my wife Mary-Ann at Canungra and we were married during my posting to LWC. After we married, we lived at Main Beach because there was no service housing at Canungra. Because of the additional costs of accommodation and fuel, I tended to drink less when living at Main Beach because I had less money. I recall I drank cheap red wine. I would also drink at the local RSL at Southport. Throughout this period, I was probably drinking 6 to 8 standard drinks each day on average. I drank heavy beer when I drank as this was usually all that was available.
32. After living at Main Beach for few (sic) months, my wife and I moved back to Canungra where we found a farm cottage to live in. When living at the cottage in Canungra, I was purchasing 2 cartons of tallies each week and drinking most of them myself. Plus, I would drink additional alcohol over the weekend recreationally.
33. When I was posted to the Survey Corps’ Regimental Headquarters at Bendigo, I commenced home brewing of beer because of the cost and convenience. When brewing my own beer, I was drinking around 6 tallies of homebrew a day…
35. When I was posted back to the Detachment at Bonegilla, my drinking patterns were similar to what they had been in Bendigo. We lived in a married quarter in Wodonga. I did not attend the Sergeants Mess because of the distance from where I was living at Wodonga. I continued to brew beer and drink it at the same rate. I would socialise with my neighbours who were all military members…”
STATEMENTS OF MARY-ANN THISELTON
The veteran’s wife also made two written statements which were admitted into evidence. The first is dated 8 December 2014 (Exhibit 1 T5.1 p. 153) and the second is dated 8 March 2017 (Exhibit 10).
In her first statement, Mrs Thiselton provided the following information:
“During the 1970s I was a civilian working at LWC Canungra where I was employed as the Commandants Secretary. My primary role was to provide secretarial services to the Commandant and several other senior rank officers, I also completed simple tasks for the drafting office, this usually involved typing of basic training aid slides utilizing the only electronic typewriter in the unit.
On the changeover of the drafting office staff I noticed a drop in the volume of assistance that I was requested to provide. The tasking changed from priority tasks to be completed over a couple of days, to very high priority with completions times of only several hours. The weekdays of the requests also changed with very few being required on a Wednesday (Sports afternoon), I quickly realized that the drafting office staff usually worked through the sports afternoon to complete the required tasks.
I also worked a second job at the local hotel, working a couple of shifts a week, employed as member of the bar staff. Ian was a regular at the bar and with few others he could to talk (sic) through the daily issues he was enduring. I became someone with whom he could talk shop to and vent his frustrations. Ian would often comment that due to the work pressures he was losing sleep at night when he would wake up and then could not get back to sleep because he was thinking about the work requirements for the task he had on hand. Initially, I took this as a joke but after we were married I found out it was a true statement.
Each posting we had, Ian was placed into a position of high stress and often required additional self-training to gain the required knowledge of new techniques and procedures. During these periods Ian was often short tempered, irritable and his erratic sleeping patterns continued and his drinking got worse.”
In her later statement, Mrs Thiselton provided supplementary information:
“8. The Land Warfare Centre consisted of a number of Wings, including Training Wing. The Drafting Office which was part of Training Wing was located in the Headquarters Building where the Commandant and Deputy Commandant and RSM were located and where I worked.
9. I recall that Ian was posted into the Drafting Office around 1976. The Officer Commanding (OC) the Training Wing at that time was MAJ. C. I personally found MAJ C to be highly overbearing and demanding Senior Officer (as a Major, he was a Senior Officer) and a very difficult person for whom to work. He gave me a very difficult time. In those days, all of the documents prepared by the Officers were hand written and this was the case with MAJ C. I had difficulty reading his writing though, after a time, I became expert at it. Initially, it led to confrontations between us. At times, he would reduce me to tears.
10. I am aware from my own observations that MAJ C also was equally hard on all who worked for him, both civilian and uniformed, particularly the Drafting Office. It was my understanding that one of the primary duties of the Drafting Office was to prepare viewgraphs for use with overhead projectors for training purposes. Because Canungra was principally a training base, there was a great demand for these viewgraphs which took time to prepare. Because I had the only IBM electric typewriter in the LWC, the Drafting Office personnel would regularly ask me to prepare the viewgraphs skins for them when they were extremely busy, which was most of the time.
11. Quite often, MAJ C and other Senior staff would make demands of the Drafting Office that they simply couldn’t meet without some assistance from me. Often that was on very short notice…
12. The Drafting Office had a posted strength of 2 and increased to 4 over time, all uniformed members….They worked under MAJ C as well. I know he gave them as difficult a time as he had given me in making unreasonable demands and using his rank to get his way. I recall that MAJ C remained as OC Training Wing for about 2 years…
13. During Major C’s time in charge of the Training Wing, I became aware of his demands upon all staff in the Drafting Office because I would go into the Drafting Office most day to wash the Commandant’s tea service because they had a sink (chemical neutralising) in the darkroom. I became friendly with the Drafting Office team and I became aware of the stress that they continually worked under.
14. It was in the Drafting Office where I first met Ian. He was the Corporal in charge of the Drafting Office and therefore responsible for its output. He bore the brunt of the pressure to get work performed…
…
16. The local hotel at Canungra was known as the Canungra Hotel and it was the only one in the town. Whilst I was working at the Army Base, I worked part-time at the hotel as a member of the bar staff. I worked two nights a week initially, Monday and Wednesdays and, then later on, I worked Saturday and Sunday sessions…
…
19. Ian became a regular drinker at the Canungra Hotel. He was certainly there on every shift when I worked. I normally worked from 4.30 p.m. to closing on the Monday and Wednesday evenings. Ian would usually arrive around 6pm to 6.30pm. He would prop itself (sic) up at the bar and remained there until closing time, drinking steadily. He would confide to me how much pressure he was under with his work, with work coming in from all directions. He would also tell me how he felt isolated in his posting at Canungra, having come from a very tightknit and supportive Corps (The Survey Corps). As a Corporal, he lacked the support of a Senior Non-commissioned Officer and his Corps Officers generally, he had no intermediary support. The posting to Canungra was a severe culture shock for him being away from his Corps and being in a very busy training environment. He had come from a mapmaking background to more general duties and he was way out of his comfort zone…
…
21. I recall that Ian would drink heavily on those occasions when I was working shifts at the Canungra Hotel. He would probably drink 3 to 4 pots of beer each hour. He would also come to the weekend sessions when I was working and once again would drink steadily…
…
23. After about 4 or 5 months, Ian and I started to go out together…
24. Ian and I were married in May 1977…
…
26. When we lived at Main Beach, Ian did not drink as much as he had previously done living at Canungra because of the need to drive regularly. However, once we move (sic) back to Canungra, his drinking return (sic) to previous levels. I had given up my bar work just before we had been married. Both Ian and I would visit the hotel regularly, sometimes having lunch there and having a beer. This occurred regularly on pay days which was fortnightly…
…
29. …Ian’s posting in Bendigo on this occasion was also highly stressful because sometimes he was on 12 hour rolling shifts. I recall vividly that he would wake up during the night and worry about work and this became a concerning pattern. I was also pregnant with our first child at this time.
30. After about 12 months in Bendigo, Ian was posted to Bonegilla near Wodonga, which was a Detachment of Survey Corps Regiment. The SNCO at this posting was a WO2 who was a heavy drinker whose usual habit was not to return to work after lunch. He made little contribution to the work of the section. To make up the shortfall, it fell upon Ian to work longer hours, including working weekends, which caused tension in our relationship. By this time, our daughter Emma was 12 months old and I was pregnant again.
31. The posting to Bonegilla lasted 4 1/2 years. For the first 2 or 3 years, it was very hard because of Ian’s drinking and his heavy workload. Another source of conflict was that Ian would not speak to anyone about his workloads and the lack of contribution by the Warrant Officer. By this time, we had two children. Ian would be away all day and working nearly every weekend as well. The stress levels in our household increased dramatically
…
34. He was subsequently promoted and posted to the 4^th Field Survey Squadron located at Keswick Barracks in Adelaide. This was a difficult posting because it involved field trips lasting as long as 6 weeks. Unfortunately, at this posting, Ian worked with a young and incompetent Lieutenant who caused Ian a great deal of stress. When Ian was subsequently posted back to Bendigo, he found out that he was working for this same young Lieutenant which contributed to Ian’s decision to submit his resignation as he found it untenable to work for him.”
LEGISLATIVE FRAMEWORK

Where a member of the Defence Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran in accordance with the provisions of the Act – s 70(1).
“Disease” is defined by s 5D(1) to mean, inter alia, any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
For the purposes of the Act, a disease will be taken to be defence-caused if:
(a)the disease arose out of, or was attributable to, any defence service of the veteran – s 70(5)(a);
(b)subject to section 70(8), the disease resulted from an accident that occurred while the veteran was travelling, during any defence service, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty – s 70(5)(b);
(c)the disease is deemed by s 70(7) to be a defence-caused disease – s 70(5)(c);
(d)the disease from which the veteran was incapacitated:
(i)was contracted during any defence service, but did not arise out of that service; or
(ii)was contracted before the commencement of the period, or last period, of defence service, but not during such period of service;
and, in the opinion of the Respondent, the disease was contributed to in a material degree by, or was aggravated by, any defence service of the veteran, being service rendered after the veteran contracted the disease – s 70(5)(d).
Neither s 70(6) nor (7) are relevant to this matter and the Respondent concedes (Statement of Facts, Issues and Contentions of the Respondent (SFICR) at para 86) that the exclusion of liability on the grounds of a veteran’s serious default or wilful act (s 70(9)) is inapplicable.
It will be noted that s 70(5)(a) requires the Tribunal to determine if the disease arose out of or was attributable to any defence service. There are numerous judicial pronouncements on the width of this test which imposes on an applicant veteran a less demanding task. This was explained by McHugh, Gummow, Callinan and Heydon JJ in Roncevich v Repatriation Commission (2005) 222 CLR 115 as follows (126/[27]):
“27. The use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying the test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”
The Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102 held that “defence-caused” is to be given a broad meaning. Perram, Nicholas and Robertson JJ said (110/[36] – [38]):
“36. Fifth, the learned primary judge’s conclusion rests on the proposition that s 196(14)(b) requires the appellant’s operational service to be the dominant or effective cause of the factor causing or contributing to the appellant’s disease.
37. In our view this construction is inconsistent with Roncevich at [27] where the plurality in the High Court said that the use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘was attributable to’ manifested a legislative intention to give ‘defence-caused’ a broad meaning…
38. Her Honour’s construction is also, in our view, inconsistent with Law where the Full Court at 150-151 considered the expressions ‘has arisen out of’ and ‘is attributable to his war service’ then to be found in s 101(1)(b) of the Repatriation Act 1920 (Cth). As to the former of these expressions, ‘has arisen out of’, the Full Court said those words required a consequential relationship and that it was not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause. Their Honours said that the expression ‘arisen out of’ was different to ‘caused by’ or ‘results from’ and was satisfied if some less proximate causal relationship was established rather than a relationship which was fanciful or so tenuous as to preclude its consideration as answering the description ‘arising out of’. As to the expression ‘is attributed to’ their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show ‘attributability ‘if the cause is one of a number of causes provided it is a contributory cause.”
Nonetheless, there must be a causal connection with defence service, rather than simply a temporal connection: Repatriation Commission v Tuite (1993) 39 FCR 540. Davies J made the following observations (541 – 542):
“…if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates. See Marshall v Minister for Pensions [1948] KB 106 at 110…
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
The standard of proof relevant to this matter is “reasonable satisfaction” – s 120(4). However, reasonable satisfaction is to be assessed by reference to the Statement of Principles (SoP) regime – s 120B. Subsection 120B(3) provides:
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities connected with that service”.
It is not contested that there are three applicable SoPs.
The applicable SoP for hypertension is Instrument No. 64 of 2013. Hypertension is defined in s 3 as “persistently elevated blood pressure, diagnosed by a medical practitioner” and is evidenced by one or more of four examples. The first example is of relevance in this matter, namely:
“(i) a usual clinic blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using ambulatory blood pressure measurements”.
The relevant factor relied upon by the veteran is 6(b):
“consuming an average of at least 500 grams of alcohol per week for at least six months before the clinical onset of hypertension.”
The applicable SoP for Ischaemic Heart Disease is Instrument No. 2 of 2016. Ischaemic heart disease is defined by s 7(2) as “a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis, vasospasm or dissection of the coronary arteries.”
The relevant factor relied on by the veteran is 9(1): “having hypertension before the clinical onset of ischaemic heart disease.”
The final SoP regarding Adjustment Disorder is Instrument No. 24 of 2016. This condition is defined in s 7(2) as “a disorder of mental health” which meets the diagnostic criteria derived from DSM-5 and which are set out in ss 7(2)(a) – (e).
The factor relied on by the veteran is outlined in s 9(5): “experiencing a category 2 stressor within three months before the clinical onset of adjustment disorder.”
“Category 2 stressor” is defined in Schedule 1 as meaning a number of enumerated negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry. In this instance the veteran relies on paragraph (c):
“(c) having concerns in the work or school environment including on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment.”
CONSIDERATION
Hypertension
The Respondent accepts (SFICR para 118) that the veteran has suffered, and continues to suffer, from hypertension.
It is not disputed that the clinical onset of the hypertension was 22 May 1978 – ASFC para 5, SFICR para 119. That was the day the veteran was admitted to 1 Military Hospital after being referred for investigation of hypertension. The medical records disclose that the veteran was suffering from elevated blood pressure and was diagnosed with hypertension by a medical practitioner – Exhibit 1 T4.1 pp. 98 – 99. Accordingly, the requirement of diagnosis by a medical practitioner in Instrument No. 64 of 2013 under s 3(b) has been met.
The next requirement is that the veteran was consuming an average of at least 500g of alcohol per week for at least the six months before the clinical onset of hypertension – s 6(c). The relevant period then is December 1977 until May 1978, or thereabouts. This was the time period that the veteran was posted to LWC Canungra.
The Respondent contends (SFICR paras 121 – 123) that the evidence adduced could not reasonably satisfy the Tribunal that the veteran drank the requisite quantity of alcohol within the time period prescribed by s 6(c). The only contemporary evidence of the veteran’s alcohol consumption is when he was admitted to hospital on 15 May 1978 when it is recorded as 50 fluid ounces each day – Exhibit 1 T4.1 pp. 49, 99. This imperial measure converts to 1478 ml each day, or 496 g of pure alcohol each week. This falls short by 4 g of the required 500 g of alcohol each week.
The Tribunal is not persuaded by this line of reasoning.
Fifty fluid ounces equates to five pots of full strength beer. A “pot” equated to 10 fluid ounces in the old measures or, approximately, 285 ml in metric measures. While the veteran’s written statements and oral evidence suggest he was drinking considerably more alcohol than this, the Tribunal was particularly impressed by the oral evidence given by Mrs Mary-Ann Thiselton.
Mrs Thiselton worked at the Canungra Hotel before she married the veteran. She observed his drinking habits from the professional prism of a bar attendant. She served him drinks on at least two nights per week for four to five months before she started dating him. They were married in May 1977, and by December 1977 were living in Canungra.
Mrs Thiselton stated (Exhibit 10 para 21) that the veteran would drink 3 to 4 pots of beer each hour at the Canungra Hotel, and stayed there from 6.30 pm until closing time. Assuming the veteran drank, on average 3 pots of beer each hour, and stayed at the hotel for three hours, he would have consumed 90 fluid ounces of beer each evening. However, that estimate is at the lowest end of the scale, based on the evidence of both the veteran and his wife. In fact, the veteran stated (Exhibit 6 para 30) that he visited the Canungra Hotel probably four nights per week, and would stay up to five hours drinking up to four pots each hour. If one accepted that estimate, then the veteran would have been consuming 200 fluid ounces of beer each drinking session.
Of course, the evidence suggests that once he was married, with reduced income (Mrs Thiselton ceased working at the hotel), the amount of alcohol he consumed decreased.
However, the veteran claimed (Exhibit 6 para 32) that he still purchased two cartons of “tallies” each week and drank most of them himself. A “tallie” at that time contained 740 ml of full strength beer, or 26 fluid ounces in the old imperial measure. Each “tallie” was the equivalent of 2.6 pots, and each carton contained 12 bottles.
Each carton of beer would contain 312 fluid ounces and, accordingly, two would contain 624 fluid ounces. Over a week that would equate to the consumption of 89 fluid ounces of alcohol each day. However, the veteran stated that he, and his wife, would also drink recreationally at the Canungra Hotel over the weekend.
Assuming that the veteran drank most of the beer himself (as he claims) and that this was supplemented by drinking sessions at the Canungra Hotel on weekends, it is clear that the veteran was consuming levels of alcohol far in excess of the 500 g prescribed by the SoP.
The Respondent relies on a contemporaneous estimate of drinking levels provided by the veteran in May 1978 when being admitted to hospital. Clearly, a serving member of the armed forces would be loath to admit to drinking to excess, and it is probable that the veteran would have provided a conservative estimate of his drinking habits. In comparison, the Tribunal was presented with written and oral testimony which suggests that the veteran had a drinking problem, and the quantity of alcohol consumed over a very lengthy period was corroborated by his wife. As stated, the Tribunal observed the oral evidence given by Mrs Thiselton. She presented as a very honest and straightforward witness, not prone to exaggeration or undue emotion. In short, she was a witness of credit. Her evidence is that the veteran was drinking far in excess of 500 g of alcohol in the period she knew him from 1976 or thereabouts and for many years thereafter.
Even if one accepted the 50 oz of alcohol per day admitted by the veteran in 1978, it equates so closely to the 500 g that a beneficial interpretation would be to accept that the veteran had reached the requisite level to satisfy the SoP. However, this common-sense approach is not required, as the evidence strongly suggests that the veteran was drinking far in excess of five pots of beer per day in the 1977/1978 period.
Accordingly the evidence presented satisfies the Tribunal, on the balance, that the veteran was consuming far in excess of 500 g of alcohol per week for at least the six months before the clinical onset of hypertension.
The conclusion that the relevant factor exists does not exhaust the inquiry required of the Tribunal. Section 6 of Instrument No. 64 of 2013 makes this clear when it states:
“The factor that must exist before it can be said that, on the balance of probabilities. Hypertension …is connected with the circumstances of a person’s relevant service”.
The Respondent contends (SFICR para 125) that the veteran’s alcohol consumption was not related to his defence service because:
(a)he was not rendering defence service when he was consuming alcohol and his drinking was not incidental to the performance of his duties, rather it was a private activity which he chose to undertake;
(b)the following are merely matters of setting and not of causation or attribution:
(i)the place(s) where the veteran’s drinking occurred;
(ii)the veteran’s drinking with fellow members of the armed forces on occasion or, at times, regularly;
(iii)the veteran’s claimed stress from his employment; and
(iv)the absence of other recreational activities.
The Respondent contends that these matters were no more than antecedent conditions which were preliminary to, and in no way causative of, the veteran’s consumption of alcohol, including to excess, within the relevant time period.
The Respondent further contends (SFICR para 126.1) that the additional matters, whether taken together or separately, are also only matters of setting and not of causation or attribution:
(a)the veteran’s close proximity to alcohol due to his living quarters and extra regimental activities;
(b)cheap price of alcohol;
(c)the claimed Army culture of drinking alcohol, including to excess;
(d)the claimed peer pressure to drink alcohol, including to excess; and
(e)the absence of other recreational activities.
With due respect, the Tribunal finds the above contentions of the Respondent somewhat at odds with the clear line of judicial authority which was outlined at length in the Respondent’s own Statement of Facts, Issues and Contentions.
The Respondent invites the Tribunal to proceed down an unduly narrow and somewhat mechanistic path. A path that was closed by the High Court in Roncevich.
It is a self-evident proposition that there must be causal connection to service and not just a temporal relation. However, there are a long line of authorities, commencing with a series of decisions of Lord Denning immediately after World War 2 and sharply illustrated by the Federal Court decision of Tuite in 1993, that the particular vagaries of “camp life” (using that term broadly to include service where a veteran is totally or partially segregated from the wider community) need to be carefully factored in by the tribunal of fact.
It is also the case, as highlighted in the above decisions, that causation is a question of fact to be assessed by the Tribunal by evaluating and weighing the material admitted into evidence.
The various cases also illustrate that whether an injury or disease “arose out of” or “was attributable to” defence service has been given a broad and generous interpretation by both the Federal Court and the High Court.
Whether a disease arose out of, or was attributable to, defence service, as mandated by s 70(5)(a) of the Act requires the tribunal of fact to determine if there is the requisite causal nexus. The causal connection postulated does not require a strict and mechanistic approach – Roncevich at 133/[56]. In that regard, reference can be made to the decision of Bowen CJ and Brennan and Lockhart JJ in Repatriation Commission v Law (1980) 31 ALR 140. A decision, which was subsequently upheld by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 and cited with approval in Roncevich. Their Honours outlined the following principles which the Tribunal must follow (at 150 – 151):
“The expression ‘injury arising out of and in the course of employment’ and injury arising out of or in the course of employment’ found in workers’ compensation legislation, have been the subject of much judicial discussion…The precise nature of the relationship denoted by the phrase depends upon the subject matter being dealt with, the context in which the expression is used and the circumstances of the particular case.
In s 101(10(b) the words ‘arising out of’ require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause.
The Act does not say death which is ‘caused by’ or ‘results from’ his war service – phrases which might connote a proximate causal relationship. The expression ‘arisen out of’ is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description ‘arising out of’…
It seems clear that the expression ‘attributable to’ in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show ‘attributability’ if the cause is one of a number of causes provided it is a contributing cause.”

The first point made by the Respondent is that the veteran was not rendering ‘defence service’ when he was drinking alcohol and his drinking was not incidental to his service. While that is the case, it invites the Tribunal to go down, potentially, an irrelevant path. In Roncevich, McHugh, Gummow, Callinan and Heydon JJ said (125/[22]):
“Another argument of the appellant should however be accepted. It was, that in asking itself whether the appellant’s intoxication was caused by, or arose out of a task that the appellant had to do as a soldier, it asked itself the wrong question, and not the question that the Act requires it to answer. The question that it should have asked is the one posed by s 70(5), whether the injury arose out of, or was attributable to, any defence service of the applicant?”
In determining if the evidence establishes the required causal connection, the Tribunal has taken into account the following matters:
(a)the veteran was 18 years of age when he enlisted;
(b)he was physically relocated from his home in Adelaide to, initially, Kapooka where he underwent basic training;
(c)he was then transferred to the School of Military Survey, Bonegilla, for trade training as a Topographic Draftsman. The trade training course was about 20 weeks in duration;
(d)there was a closed camp policy, and weekends were also considered available training time;
(e)out of 20 students, only seven finished, and the veteran found this as an extremely anxious and stressful period;
(f)it was during this time that he commenced drinking alcohol excessively to deal with the stress he was experiencing;
(g)although the legal drinking age was then 21, he was able to freely access alcohol from the onsite “boozer”;
(h)drinking was his only recreation and the “boozer” was located between his accommodation and the dining mess;
(i)the veteran’s first unit (Detachment AHQ Army Survey Regiment) was co-located with the School and the stress he experienced during training continued;
(j)it was during this time that the veteran was the subject of two disciplinary actions involving alcohol;
(k)the veteran claimed that at this time he was drinking a 6 pack each night to deal with the stress;
(l)there was ongoing peer pressure to drink, ongoing work-related stress and access to cheap alcohol on the base, whether at Bonegilla, or subsequently at Bendigo (1984 – 1976);
(m)whilst at Bendigo the veteran was required to perform rostered duties as Mess Steward, and was encouraged to drink by his senior officers;
(n)the veteran stated that his “primary job required extended periods of intense concentration and this coupled with the production pressure, stress from these situations continued. The ease of obtaining very cheap or Free Alcohol was used in an effort to reduce the stress – Exhibit 1 T5.1 p. 148;
(o)the veteran’s time at LWC Canungra (1976 – 1978) was particularly stressful. It was the first time he was not working with his peers and fellow Survey Corps members, but was in a staff, initially, of two. The veteran claimed that “the work load was heavy and relentless, and the task requirements varied greatly. In some instances the requirements were not practical or possible within the timeframes…The syllabus and nature of the various courses often made it impossible to change the delivery date meaning extended hours which added to the already stressed situation” – Exhibit 1 T5.1 p. 148;
(p)the workload was so great that the veteran worked most Wednesday afternoons when otherwise he would be entitled to play sports, worked overtime some weekends and deferred the taking of annual leave (Exhibit 4): “The anticipated work load for the draughting (sic) office from May to July will make leave impracticable until later in the year” (dated 22 April 1976);
(q)the veteran’s alcohol consumption continued, as he claimed it was a means of release from the pressures and stress of work, his isolation from fellow Survey Corps members and the physical isolation of living at Canungra;
(r)the commanding officer was, according to Mrs Thiselton, “highly overbearing and demanding” and he was particularly hard on the Drafting Office resulting in “stress that they continually worked under” – Exhibit 10 at [9], [10], [13];
(s)by 1976, and thereafter, the veteran was drinking regularly and excessively and Mrs Thiselton was in a unique position to observe this because she not only worked in the same location as the veteran but also worked as a bar attendant at the hotel he frequented. She presented a picture of a man under extreme and ongoing stress seeking the refuge of alcohol as a means of ensuring that he could deal with the unsatisfactory work environment that presented itself in a remote location working with superior officers, at least one of which was a harsh and unfair disciplinarian.
There are numerous Tribunal determinations dealing with alcohol consumption. For present purposes reference can be made to two determinations, the first being Re Fisher and Repatriation Commission (2006) 93 ALD 257.
The veteran in that matter enlisted in the Royal Australian Navy (RAN) in 1945 and was a teetotaller, having come from a non-drinking family. He was posted to HMAS Cerberus for training, a location where alcohol consumption was prohibited for trainees. The veteran travelled to Melbourne on recreation leave every three or four weeks where he drank alcohol to excess as a relaxant. He was subsequently posted to HMAS Stuart which was moored in Sydney. Whilst in Sydney the veteran spent most of his time in a bar frequented by navy personnel and drank heavily. HMAS Stuart sailed to New Guinea (Milne Bay) where the veteran worked tropical hours. After midday he spent time relaxing and drank beer with his peers. Although RAN supplied alcohol was limited, canned beer was readily available by trading it with American personnel for cigarettes. Following his discharge, the veteran continued to drink heavily.
In finding in favour of the veteran, Senior Member Handley said (at [29]):
“I am satisfied and find as a fact that the incidents of the applicant’s service – both initially in training and subsequently – involving ‘camp life’ – did have a causal influence upon his decision to initially commence consuming alcohol and the subsequent consumption. The applicant’s evidence is consistent with the evidence heard by many other veterans, particularly those who worked in the Pacific Islands, of being engaged in heavy physical labour in a hot humid environment. Limited supply of beer was made available by Navy personnel but it was frequently available from other sources and by other means. Boredom was a frequent consequence of service when labour was not being undertaken. Alcohol consumption and cigarette smoking were past times frequently undertaken by veterans, no less the applicant in the present application.”
The second, and older, determination is Re Lindsay and Repatriation Commission (1995) 39 ALD 108. The veteran in this matter joined the RAN in 1970 and came from a happy family with no history of drinking problems. Initially he was a social drinker and had never been drunk. He experienced a number of upsetting incidents while serving on HMAS Vendetta for about a year. He was trained for clerical work and posted to Fleet Headquarters in Sydney. He started to drink heavily and continued to regard this behaviour as normal amongst his RAN colleagues. In 1973, he was posted to HMAS Parramatta as a pay clerk and claimed that he was under pressure, was short of sleep and felt overworked and stressed. He was prescribed Valium and later diagnosed with acute anxiety and reactive depression. He began drinking heavily, usually 12 beers each session. His engagement was broken off because his fiancée could see he was a drunk and this pattern of excessive drinking continued until his discharge from the RAN in 1986. He complained of having a very heavy workload and was subject to a Captain who was very demanding. He did not complain as he feared a demotion, and began having violent nightmares and developed a fear of crowds. The veteran subsequently had a “breakdown” and was later admitted to hospital for alcohol abuse.
The Tribunal made the following finding (at [37]):
“In relation to the period on HMAS Parramatta the tribunal finds that the applicant was placed under significant pressure by his duties. The pressure to perform both administrative and ‘active duty’ tasks appears to have waged a toll on the applicant’s psyche, causing him to become depressed and unhappy. The evidence supports a conclusion that it was at this time the pressure and stress of this position caused the applicant to drink more heavily and such drinking was facilitated by the fact that those around him were drinking heavily as well. The tribunal is satisfied that the applicant’s extreme stress, and the culture of drinking common amongst those he was with, led to the applicant’s use of alcohol, not only to socialise, but to deal with the anxiety and stress problems form which he was suffering.”
In the veteran’s case, the evidence presented supports the following findings:
(a)the veteran enlisted when he was a young man;
(b)the environment he experienced, then, and for some years thereafter, was one of a closed camp with strict discipline, ongoing pressure to pass exams and perform, with easy access to alcohol, despite the fact that he was underage for the first three years of his enlistment;
(c)the veteran experienced ongoing stress due to his duties, which reached a peak when he was posted to Canungra;
(d)the veteran increasingly sought refuge in alcohol to deal with his work-related stress;
(e)there was a culture of drinking amongst his peers;
(f)alcohol consumption was not only allowed but, at times, encouraged.
The issue before the Tribunal is not whether the veteran would have consumed the same amount of alcohol if he had not enlisted and was subject to the same type of stresses in a civilian environment. Such an exercise is akin to engaging in ill-informed speculation.
The question whether there has been a causal link established between the veteran’s defence service and his alcohol consumption, can clearly be answered in the affirmative. The veteran’s alcohol consumption arose out of and was attributable to his defence service.
Finally, the Respondent correctly highlights that the veteran’s defence service started on 7 December 1972 and the evaluation undertaken by the Tribunal focuses on events after that date. However, it would be artificial and incorrect for the Tribunal not to consider the events that preceded that date, including events in the period after the veteran enlisted. Events occurring both before and after enlistment are of critical importance in evaluating the circumstances and conduct during the relevant service. The fact that the veteran started drinking to excess after enlisting, and that he was living a “camp life” from 1971 to December 1972, set the scene and explain why that conduct continued after 7 December 1972.
Ischaemic Heart Disease
The Respondent accepts (SFICR para 127) that the veteran currently suffers from ischaemic heart disease and that the clinical onset of that disease was 2 May 2007.
It is also accepted (SFICR para 128) that the veteran was diagnosed with hypertension before the clinical onset of ischaemic heart disease.
The relevant SoP is Instrument No. 2 of 2016, and the Factor to be considered is as follows:
“9. At least one of the following factors must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person’s relevant service:
(1) having hypertension before the clinical onset of ischaemic heart disease”.
Having found that the veteran’s hypertension was service related, it flows from the wording of the SoP that his ischaemic heart disease is also service related.
Adjustment Disorder
The veteran relies on Instrument No. 24 of 2016, the relevant parts of which have been set out earlier.
The veteran makes the following submissions (ASFC para 13):
“13. The applicant contends that his experiences in the workplace at Canungra between 1976 and 1978 meet the requirements of the definition of a category to (sic) stressor ‘having concerns in the work environment, perceived lack of control over task performed and stressful workloads’.
13. (sic) The adjustment disorder condition was diagnosed by the applicant’s treating psychiatrist Dr Perce Tucker. In his report dated 25 June 2016, Dr Tucker identifies the applicant experiencing workplace stressors at Canungra in the mid-1970s as causative of the condition.
Dr Tucker is an experienced psychiatrist operating from Wickham Terrace, Brisbane. In his report of 25 June 2016 he made the following prognosis of the veteran – Exhibit 2 T9 p. 76:
“Ian is very well known to me. I have seen him on 16 occasions between 02.08.2013 and 24.06.2016. He continues to see me on a regular basis for monitoring and management of his severe chronic adjustment disorder with anxiety and depression….This meets DSMIV/V diagnostic criteria.
Ian’s CAD + A + D was caused by workplace stressors (massive workload and inadequate training from mid 1970’s - at Canungra) during military service…which also caused late severe coronary artery disease etc marked hypertension. Ian had no previous psychiatric history and no relevant family history.”
The Respondent contends (SFICR para 129) that the Tribunal cannot be satisfied that the veteran suffered a disease, and a kind of a disease, to which a SoP applies, and relies on the report of Dr Frank Varghese.
Dr Varghese is also an experienced psychiatrist and also has offices at Wickham Terrace. After interviewing the veteran, but without reading the accompanying documentation, Dr Varghese reached the following conclusions – Exhibit 13 p. 6:
“Relying on the information from the interview, it does not seem that Mr Thiselton suffers from any psychiatric disorder. He does not describe significant psychiatric symptoms or disability and the mental state is not indicative of any mental disorder. He does report a period of significant alcohol abuse in the past but this moderated after his cardiac surgery and over the past two years he has been abstinent from alcohol. There has been no problem with any other addictive substances.
Mr Thiselton does not describe any past psychiatric history. He reports that when he was stationed at Canungra in his 20’s he had sleep difficulties and some anxiety in relation to demands by officers for work to be competed in unrealistic timeframes. He was a corporal at the time. He reports being admitted to hospital for some investigations but the context is not clear. I note that in Canungra he was not engaged in his normal trade which was as an Army Cartographer. I note he met his wife and they married while he was stationed there.
He has not served overseas and he does not describe experiencing any traumatic events during his Army service.
Subsequently to Canungra Mr Thiselton does not report any difficulties with his Army service. Following discharge from the Army he has been employed in Cartography until his retirement although he continues doing consultative work.
Mr Thiselton reports being referred to a psychiatrist on the advice of an advocate with respect to whether his ischaemic heart disease which required a triple bypass could be related to emotional issues stemming from his Army service. He does not report any emotional symptoms at the time he consulted the psychiatrist. He continues to see the psychiatrist but reports that he does not know the reasons for this but does so on the advice of the psychiatrist.
I note that despite his cardiac problems Mr Thiselton describes good psychosocial functioning….”
After reviewing the documentation Dr Varghese reached these conclusions – Exhibit 13 pp. 12 – 13:
“(i) At the time of the evaluation Mr Thiselton was not suffering from any psychiatric condition in any meaningful way….the mental state is not consistent with any current mental disorder…
(ii) On the data available it does not seem that Mr Thiselton ever suffered from any significant mental disorder…
(iii) The only exception to (ii) is that Mr Thiselton reports that he had difficulty sleeping and had some anxiety about going to work during the period he was stationed at Canungra. This was in relation to the demands with unrealistic timeframes being demanded by Commissioned Officers with respect to preparation of materials for them. During this time it also seems that his hypertension was diagnosed. I note that this was considered to be ‘essential’ hypertension and his admission to hospital was for the assessment and management of the hypertension as against any psychiatric issue. It is also of interest that it was while he was in Canungra that he met his wife and indeed they married while he was serving there. What this suggests is that his overall psychosocial functioning was reasonably good…
…
(v) It is possible that Mr Thiselton self-managed his anxiety symptoms during the Army by self-medicating with alcohol. It is likely there were periods of alcohol abuse but without dependence. On the other hand there is no evidence that he did have significant psychiatric symptoms.”
Dr Tucker gave a follow-up report dated 5 September 2017 where he said that he had no “qualitative disagreement” with the report of Dr Varghese but had “significant quantitative differences of opinion”. Dr Tucker made the following observations – Exhibit 7 p. 1:
“I believe it minimizes and downplays the seriousness of the military stressors and psycho-physiological consequences experienced by Mr Thiselton and the major effects on him – including the severe hypertension causing cardiac disease and the alcohol abuse.”
The Respondent contends (SFICR para 132) that the Tribunal should prefer the opinion of Dr Varghese because of his extensive experience, his considered regard to all of the materials before the Tribunal, and his careful reasoning in his report.
The Tribunal notes that Dr Tucker has been working with veterans since 1972, and therefore has 45 years’ experience in this field and has been a psychiatrist for 36 years. Accordingly, in reaching its conclusion on the preferable diagnosis, the relative experience of each of these professionals was not an issue.
The Tribunal had the benefit of listening to each of these gentlemen give oral evidence. Both presented as thoughtful and very professional, and the Tribunal was impressed by the quality of the testimony given.
Nonetheless, the evidence given by Dr Varghese was particularly compelling, convincing and objective.
Dr Varghese correctly conceded that the veteran could have understated the extent of his problems and agreed that the evidence pointed to him being under considerable stress while serving in the Army, particularly at Canungra. He pointed out that anxiety and stress are a normal condition when a person is being put under pressure and supervision. In addition, he opined that consumption of excessive alcohol is a common cause of insomnia.
Importantly, both during his evidence in chief and during cross-examination, Dr Varghese regularly referred to the historic evidence before the Tribunal as well as his own professional observations and conclusions.
Dr Varghese correctly noted that despite the stresses he was under, the veteran’s performance never seemed to unduly suffer. His service records disclose he was liked and had reasonably good interpersonal skills. He met and married his wife, and despite some bad times brought about by his alcohol consumption and the pressures of Army life, had an enduring and stable marriage and successfully raised three children.

Dr Varghese specifically conceded that the veteran apparently went through stressful periods in the Army and may have self-medicated with alcohol. The material before the Tribunal (and Dr Varghese) led him to conclude that it was likely that he was abusing alcohol at various time in his service career. He noted, however, that the veteran had gone “cold turkey” and had not consumed alcohol for some time, and his ability to do so was not consistent with him being alcohol dependent.
Dr Varghese opined that the veteran showed no signs or symptoms of anxiety when being interviewed, and while agreeing that Dr Tucker may be right in saying that he is a difficult man to interview and he had only interviewed him once, nonetheless he warned that a treating doctor runs the risk of morphing into an advocate for his or her patient.
The issue to be determined at the outset is whether the evidence supports the proposition that the veteran suffered from adjustment disorder as prescribed by Instrument No. 24 of 2016.
The Tribunal finds that the clinical opinion of Dr Varghese is preferable to that of Dr Tucker. Dr Varghese’s report was lengthy, dealt with all of the material before the Tribunal, comprehensively dealt with all matters or relevance, and, finally, was internally consistent. Dr Tucker’s reports, in comparison, were brief and somewhat subjective. It is no criticism to note that Dr Tucker presented as more of a compassionate advocate for the veteran, whereas Dr Varghese presented as an objectively focused psychiatrist without being encumbered by any ties of personal affection for the veteran. The fact that Dr Tucker presented in this light reflects, no doubt, his almost five decades of service for the veteran community and his undoubted commitment to advancing their rightful cause.
The findings of Dr Varghese are compelling in the sense that they are rooted in an objective reading of the evidence and are buttressed by his observations of the veteran, which, it should be added, are consistent with the Tribunal’s observations of him.
Psychiatry though a respected branch of medicine, is not an exact science. The vagaries of the human mind are beyond the realm of medical science to catalogue let alone comprehensively understand. Psychiatric conclusions are in the nature of informed interpretations.
Subject to that self-evident qualification, the Tribunal finds that the veteran did not suffer from an adjustment disorder at any time, and that the requirements of Instrument No. 24 of 2016 have not been met.
DECISION
The Tribunal:
(a)sets aside the decision of the Veterans’ Review Board of 21 September 2016 that denied liability for a pension for the veteran’s claimed conditions of hypertension and ischaemic heart disease;
(b)substitutes a decision that the veteran suffered or suffers from defence served related hypertension and ischaemic heart disease;
(c)remits these matters to the Respondent for all necessary action;
(d)affirms the decision of the Veterans’ Review Board of 3 February 2017 denying liability for a pension for the claimed condition of adjustment disorder.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..............................[SGD]..........................................
Associate
Dated: 16 February 2018

Date of hearing: 18 December 2017

Date final submissions received: 10 October 2017

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Katherine McGree

Terence O’Connor Solicitor

Counsel for the Respondent: Mr Anthony Harding

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 237

16 February 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Causation

Remedies

Appeal

Date of hearing:	18 December 2017
Date final submissions received:	10 October 2017
Counsel for the Applicant: Solicitors for the Applicant:	Ms Katherine McGree Terence O’Connor Solicitor
Counsel for the Respondent:	Mr Anthony Harding
Solicitors for the Respondent:	Australian Government Solicitor