Tonkin and Repatriation Commission

[2011] AATA 232

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 232

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2606

VETERANS’ APPEAL DIVISION		)
Re		JENNIFER TONKIN

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 7 April 2011

Place Brisbane

Decision The decision under review is set aside. The Tribunal decides in substitution that the applicant’s colorectal cancer arose out of, or is attributable to, her eligible defence service by reason of her drinking. The matter is remitted to the respondent to consider the rate of pension. The date of effect is 14 June 2009.

...................[SGD]...........................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENT — colorectal cancer — whether applicant’s drinking is attributable to defence service — environment encouraged alcohol abuse — decision set aside.

REASONS FOR DECISION

7 April 2011 Senior Member Bernard J McCabe

1. Jennifer Tonkin became a heavy drinker during the course of her eligible defence service in the Army. She subsequently developed cancer. The relevant statement of principles (No 2 of 2004) identifies heavy drinking as a factor in the development of the cancer in question. I must decide whether the applicant’s cancer arose out of or was attributable to her defence service within the meaning of s 70(5) of the Veterans’ Entitlements Act 1986 (the Act). 

Background facts

2.      The following information is drawn from the applicant’s statement (Exhibit 2) and her oral evidence at the hearing. I would say at once that I am satisfied the applicant was a truthful witness. Her account was given in a measured way and she was unshaken on cross-examination. No other evidence was led to contradict her story. I accept her evidence is generally reliable.

3.      I also accept the evidence establishes the applicant consumed at least 500 kilograms of alcohol during the period of her eligible defence service. I do not understand there to be any controversy about that.

4.      The applicant enlisted in the Army in 1975. She was discharged in 1995. From the time that she commenced basic training at Mosman in Sydney in 1975 until she was trained as a physical training instructor (“PTI”) in late 1977, she served in a number of locations. In each of those posts, she lived in Army barracks with other recruits or soldiers. That was not a matter of choice: single soldiers who had recently enlisted were required to live on base in those days.

5.      Ms Tonkin was 17 when she commenced basic training. She came from a sheltered background. She had limited contact with alcohol. Her parents were very modest drinkers. She confirmed she did not have access to alcohol when she started training. She was under the age of 18, after all. She and her friends from the basic training program managed to sneak into a hotel and acquire alcohol when they were given a night off about four weeks into the course. That first night of drinking was the start of a pattern of consumption that escalated throughout her time in the service. Ms Tonkin emphasised it was a shared experience with her fellow recruits. While she did not suggest that anyone from the Army had encouraged under-aged drinking, she said the Army made it clear from the start of her training that team work and bonding with her fellow recruits was a core value.

6.      A few weeks after basic training was complete, the applicant was posted to Puckapunyal in Victoria. She said the wet canteen, known as “the Boozer”, was the centre of life at the base. She said soldiers did not venture into the nearby town of Seymour. Army personnel were not popular in town, it seems. She said there was nothing else to do on the base after hours. Everyone attended the Boozer with their friends. Heavy drinking was the order of the day. She said life at her next posting in Melbourne was the same. Everyone did it, she said; it was the culture.

7.      The applicant completed the physical training instructors’ course in 1977. By this time, she had been promoted. She was promoted to sergeant in due course, and received further promotions during the course of her Army career. She was a pioneer. She said she was one of the first female PTI’s in the Army, and she was the only female PTI at her first posting in Mosman. She had two male subordinates in that role. I infer it took them time to adjust to the novelty of a female supervisor. In any event, Ms Tonkin said she felt intense pressure to compete with the men in a male-dominated environment throughout her Army career.

8.      Ms Tonkin was able to live off-base once she was promoted through the ranks but she said she still mixed almost exclusively with other soldiers. That included drinking regularly with her comrades. She said she was drinking heavily every night by 1977, and binge drinking on the weekends. She said it did not affect her work. She proudly insisted she would work off a hang-over through exercise every morning. She emphasised that the drinking was a prominent feature of Army culture that promoted teamwork and bonding in a masculine environment. She noted she was required as a non-commissioned officer (“NCO”) to attend a number of formal dinners each year where the alcohol flowed freely. She was also expected to attend the mess and drink with colleagues on every payday, and on other days besides. She said the regimental sergeant major (“RSM”) would “parade” anyone who did not attend formal dinners, or who avoided attending the Boozer sufficiently often. She said the RSM would insist that it was a responsibility of an NCO to attend social functions. Ms Tonkin explained that not attending these functions, or not drinking, was not an option even if she could not be subject to formal discipline if she failed to participate on a regular basis. And participation, she explained, meant drinking heavily.

9.      The applicant depicted a drink-sodden, masculine environment where excessive consumption was the order of the day. The Army facilitated the environment by ensuring that cheap alcohol was readily available, and by ensuring that the Boozer was at the centre of the soldiers’ social interaction. She said the prevailing ethos was “work hard, play hard, work and play together”. She said she felt the pressure to drink was particularly acute given her gender. She found it difficult dealing with the aggressively masculine nature of the workplace.

Did the condition arise out of the applicant’s work?

10.     The Repatriation Commission argues that the decision to drink was one for the applicant alone. She was not forced to drink; she did so of her own volition. It was not a feature of her employment. Mr Stoner, for the respondent, pointed out that the applicant began drinking when it was illegal for her to do so by sneaking into a hotel off-base. There was no suggestion that the Army introduced her to alcohol. Mr Stoner said that by the time the applicant was an NCO and was subject to pressure from her superiors to attend the Boozer – if that is what happened – her pattern of alcohol abuse had already been set. In other words, the damage was already done by the time she risked being paraded before the RSM for failing to be sufficiently convivial.

11.     I am satisfied from the applicant’s evidence that the pattern of alcohol abuse took hold before 1977. Whatever the motive or circumstances of her experimentation with alcohol during basic training, the pattern appeared to form once she finished that course, and especially once she was transferred to Puckapunyal in 1975. That was the point at which she became immersed in a culture that did not simply condone, but actively encouraged, excessive alcohol consumption. Thereafter, as she was promoted, the pattern was confirmed by the institutional pressures she described in her evidence, and as a response to the stress she experienced in the workplace as a result of her gender in a masculine environment. I accept that her evidence about being paraded before the RSM related to a period after 1977 once the pattern had become evident, but I think it can be inferred the drink-sodden culture had permeated through the ranks and was apparent from the commencement of her service. If that is the way NCO’s were behaving in 1977, it is unlikely that young soldiers were unaware of it in 1975.

12.     While the evidence suggests the pattern was established by 1977, it could have been broken if circumstances – if the culture - had been different. I note the applicant’s work apparently did not suffer even though she was drinking very heavily. Indeed, her statement suggests she had a successful career and worked in a number of demanding roles. She said she did not think there was anything wrong with what she was doing at the time. If the drinking had begun to affect her work, she might have had a different attitude to her behaviour. I note she has since stopped drinking in light of her poor health. Abstinence is clearly not beyond her in the right circumstances.

13.     I accept the applicant was not required to drink as part of her service, but I am satisfied her drinking nonetheless arose out of her service. It was expected and facilitated and subsidised by the Army from about 1975 when the pattern was first established. She certainly had a choice to drink or not, but it was a choice constrained by the reality of her work environment. That environment promoted alcohol abuse. It may be that Ms Tonkin was particularly vulnerable in light of her age in 1975 and the circumstances in which she found herself (that is, as one of the first women seeking to become a PTI). In any event, I am satisfied the causal link between the alcohol consumption, the eligible service and the subsequent ill-health can be established.

Conclusion

14.     The decision under review is set aside. The Tribunal decides in substitution that the applicant’s colorectal cancer arose out of, or is attributable to, her eligible defence service by reason of her drinking. The matter is remitted to the respondent to consider the rate of pension. The date of effect is 14 June 2009.  

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: ......................[SGD]..................................................
  Associate

Date of Hearing  5 April 2011 
Date of Decision  7 April 2011
Counsel for the Applicant               Mr A Harding
Solicitor for the Applicant               Terence O’Connor Solicitor
Advocate for the Respondent        Mr J Stoner