Trappett and Repatriation Commission (Veterans' entitlements) - [2019] AATA 3736

Trappett and Repatriation Commission (Veterans' entitlements) [2019] AATA 3736 (20 September 2019)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2018/0817
Re:Ian Trappett
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:20 September 2019
Place:Brisbane

The Tribunal:
(a)affirms the reviewable decision in relation to left shoulder osteoarthritis;
(b)sets aside the reviewable decision in relation to subarachnoid haemorrhage and in substitution finds that the veteran’s subarachnoid haemorrhage was war-caused; and
(c)remits the matter to the Respondent for assessment of pension in accordance with this determination.

....................................[SGD]....................................
Deputy President J Sosso
CATCHWORDS
VETERANS AFFAIRS – Veterans’ Entitlements – service pension – left shoulder osteoarthritis – rugby league football injury – date of clinical onset – failure to seek medical intervention – no evidence presented to explain failure to obtain medical assistance – decision under review affirmed – subarachnoid haemorrhage – alcohol consumption – operational service – Vietnam – Deledio methodology – decision under review set aside – remitted to Repatriation Commission to assess pension entitlements
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission (2009) 177 FCR 280
Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429; 158 ALD 64
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Forrester v Repatriation Commission [2013] FCA 898
Hardman v Repatriation Commission [2005] FCAFC 83
Kaluza v Repatriation Commission [2011] FCAFC
Lees v Repatriation Commission (2002) 125 FCR 331
Read and Military Rehabilitation and Compensation Commission [2015] AATA 930
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Richards and Repatriation Commission [2012] AATA 308
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
Deputy President J Sosso
20 September 2019
INTRODUCTION

Mr Ian Clifford Trappett (the veteran) seeks a review of a decision of the Veterans’ Review Board (VRB) of 15 December 2017 (Exhibit 1 T153 pp. 571-579) which affirmed a decision of the Repatriation Commission (the Respondent) of 22 March 2017 which rejected the veteran’s claimed conditions of subarachnoid haemorrhage and rotator cuff syndrome of the left shoulder as being service-related and continued the veteran’s disability pension at 80% of the general rate – Exhibit 1 T145 pp. 535-542. The VRB also decided that the veteran’s osteoarthritis of the left shoulder was not related to service.
The veteran was 67 years of age at the date of the Hearing, and joined the Royal Australian Navy (RAN) on 8 February 1969 when he was 17 years of age. The veteran’s father served in the RAN as a member of the Naval Dockyard Police (Exhibit 3 para 3) and two older brothers had already enlisted when he joined (Exhibit 3 para 5). The veteran left high school after his third year, and between leaving school and enlisting he worked in a pastry shop baking and selling pies – Exhibit 3 para 4.
After enlisting, the veteran was posted to the Recruit School at HMAS Cerberus, and after three months of training he was posted to HMAS Vendetta – Exhibit 3 para 5.
The veteran served as a cook in the RAN until his discharge on 9 July 1989, having attained the rank of Able Seaman.
It is not disputed that the veteran rendered operational service on board HMAS Vendetta in Vietnam during the period 15 September 1969 until 11 April 1970. It is also undisputed that the veteran rendered eligible service as a Member of the Defence Forces during the period 7 December 1972 to 8 July 1989 – Exhibit 1 T19 p. 179.
In his Statement of 18 June 2018 the veteran gave the following account of his formative experiences after enlisting – Exhibit 3:
“6. HMAS Vendetta was involved in workups in preparation for deployment to South Vietnamese waters. This was the first time that I ever been on a warship. We sailed for South Vietnam in September 1969. I was still 17 years of age. I had been in Navy for seven (7) months.
7. We initially sailed to Subic Bay in the Philippines where we came under the control of the US Seventh Fleet relieving HMAS Brisbane. The ship then sailed for South Vietnamese waters arriving in Da Nang Harbour in early October where we relieved the Destroyer USS Walke on the gun line. Da Nang is further north along the South Vietnamese coastline than Vung Tau.
8. As a very junior naval recruit, I was allocated to the Gun Bay. My duties in the Gun Bay were to load cordites on to a lift apparatus which took them up to the gun turret. I never received any formal training in these duties. It was all immediate on-the-job training. I had no prior gunnery experience whatsoever before joining HMAS Vendetta.
9. I vividly recall that we initially spent 33 days straight on the gun line on that first occasion moving up and down that part of the Vietnamese coast line. It was very intense as we were on a war footing. Nothing prepares you for the ship to shore bombardments that HMAS Vendetta was involved in for those 33 days and subsequently for long periods of time during our 6 months in South Vietnamese waters.
10. Sometimes the bombardments lasted for a few hours and on other occasions it was merely harassing fire which was not so intense. On HMAS Vendetta, there were three sets of two guns each which were 4.5 inches in diameter. There were also 4 Bofors guns. The shells that we fired each weighed around 75 kg. We carried them manually especially when loading them ship to ship and then down into the Armoury. It was very difficult and dangerous work…
17. After a bombardment (shoot) on HMAS Vendetta, we would receive reports back concerning the damage caused by the bombardment usually from a spotter aircraft flying over the target and these were oral communications that were played over the intercom. I was able to hear the verbal reports from the spotter pilot in real time so I was very much aware of the destruction that we were causing to people and property. Furthermore, the Executive Officer (XO) or the Gunnery Officer would report to the crew over the loudspeaker system on the ship the outcome of the bombardment…
19. When HMAS Vendetta was on the gun line, there was no drinking alcohol on board ship. This was usually for long periods of time. When we left the gun line, we would usually have a beer issue. We would usually head for a port for recreational leave. Quite often it was Subic Bay, the large American Naval Base in the Philippines. At Subic Bay, there were plenty of recreational facilities including numerous bars along a 2 km strip along the waterfront.
20. On these R&R occasions, we would drink very heavily. I found that consuming alcohol provided me with a strong sense of relief from the trauma of the bombardments whilst on the gun line and the stress of life on-board a warship continuously in a war zone. I was deeply affected by my wartime experiences on the gun line on HMAS Vendetta both at the time and long afterwards. I found that it helped to drink alcohol to dull the memory of those traumatic experiences. We would drink and socialise in our ‘social groups’ that we had formed in Sydney and we looked out for each other. Drinking together helped us cope with the rigours of wartime naval service.”
The evidence presented to the Tribunal also discloses that following the veteran’s discharge he continued to serve as a Reservist until 9 July 1994.
After returning to civilian life, the veteran worked mainly in the hospitality industry as a cook and a catering manager. The veteran last engaged in remunerative work in August 2014 after which he was afflicted with the impact of the claimed subarachnoid haemorrhage – Exhibit 1 T5 pp. 114-120.
The Respondent has accepted the following conditions as being related to service:
·Sensorineural deafness;
·Osteoarthritis of both knees; and
·Bilateral tinnitus.
In contradistinction, the Respondent has rejected the following conditions being related to the veteran’s service:
·Dupuytren’s contracture of the right fourth finger (2008);
·Subarachnoid haemorrhage (2017);
·Rotator cuff syndrome of the left shoulder (2017); and
·Osteoarthritis of the left shoulder (2017).
At the Hearing, Mr Anthony Harding of Counsel for the veteran, confirmed that the VRB’s decision on rotator cuff syndrome of the left shoulder was not being contested – Transcript (Tr.) 3 June 2019 p. 4. It was properly conceded that the medical evidence does not support a finding that the veteran suffers from rotator cuff syndrome, with the correct diagnosis being osteoarthritis – Report of Dr Peter Sharwood, Orthopaedic Surgeon, dated 16 January 2019 , Exhibit 7.
HISTORICAL BACKGROUND
Since 1984, the veteran has lodged numerous claims with the Respondent. Whilst the Respondent has accepted in whole or part some of these claims, others have been rejected. The following discussion is limited to those claims which have received favourable consideration by the Respondent up to March 2014.
The veteran first lodged a Claim for Medical Treatment and Pension on 12 June 1984 for “high frequency hearing loss” which was said to have been caused by service on HMAS Vendetta, particularly whilst serving in Vietnam in the September 1969 – April 1970 period. The veteran provided the following information – Exhibit 1 T6 p. 123:
“I was placed in the gun bay where we had no hearing protection also while we were in refit the use of grinders, Jason pistols and chipping hammers on the deck above the galley where I worked.”
On 24 October 1984 the Respondent accepted that the veteran’s sensorineural deafness was related to his war service, with effect from 2 April 1984 and found that he was eligible for payment of a disability pension at 10% of the General Rate, effective from 2 April 1984 – Exhibit 1 T12 pp. 149-150.
The veteran lodged a claim for disability pension for bilateral osteoarthritis of his knees together with an Application for Increase Pension on 10 January 2007 – Exhibit 1 T20 pp. 180 – 190.
In the claim form the veteran gave the following explanation for how his service caused, contributed or aggravated this condition – Exhibit 1 T20 p. 184:
“Playing league football for all services and lifting vitals around the ships & up & down between the decks & also in the galleys.”
The signs and symptoms of the condition was explained as follows – Exhibit 1 T20 p. 184:
“Constant aching all the time. Clicking when walking. Have difficulty standing after sitting for long periods.”
Following the examination and assessment of the veteran by Dr Simon Journeaux, Orthopaedic Surgeon, the Respondent accepted that the veteran’s bilateral knee osteoarthritis was service related and increased the veteran’s disability pension to 50% of the General Rate effective from 11 October 2006 – Exhibit 1 T37 pp. 233-235.
On 3 February 2012 the veteran lodged an application for an increase in the disability pension in which he stated that his hearing loss and bilateral osteoarthritis of the knees had deteriorated – Exhibit 1 T53 pp. 295-307.
The veteran was assessed in a Combined Impairment Report dated 15 October 2012 with a 40 point impairment comprising 22 points for hearing loss and tinnitus, 20 points for lower limbs, five points for resting joint pain and two points for disfigurement and social impairment – Exhibit 1 T58 pp. 324-329.
On 15 October 2012 the Respondent determined to increase the veteran’s disability pension to 70% of the General Rate with effect from 7 February 2012 – Exhibit 1 T59 pp. 330-337.
The veteran lodged a further Application for Increase in Disability Pension on 19 April 2013, and provided the following reasons for the claimed increase – Exhibit 1 T62 p. 342:
“My accepted knee conditions have worsened resulting in me having to have surgery on right knee in May 2013. The increase pain and restricted movement has also resulted in my being unable to work.”
This document also contains information about the veteran’s employment history. It is stated that the veteran ceased work on 22 February 2013, and that in the period 2012-2013 he was working as “Operator/Chef” at Spartan Mining Service. The veteran stated that he was unable “to work in any remunerative work due to my accepted knee conditions” – Exhibit 1 T62 p. 343.
Medical Impairment Assessments were conducted by Dr Frederick Scholtz, General Practitioner, in June 2013. In respect of the veteran’s lower limb condition, Dr Scholtz made the following observations – Exhibit 1 T71 p. 360:
“He had total knee replacement on 20/5/2013 complicated by DVT after. He is still recovering and recuperating from surgery. There is slow steady improvement.”
Dr Scholtz observed that the veteran was then “hobbling along with 1 crutch”, was experiencing pain, could only walk for approximately 20 metres and was unable to ascend or descend stairs – Exhibit 1 T71 p. 359. The net effect of this state of affairs in Dr Scholtz’s opinion was a loss of 50% of normal range of movement in the veteran’s right knee and 25% in the left knee – Exhibit 1 T70 p. 358.
In another document, also dated 26 June 2013, Dr Scholtz opined that the veteran was likely to “recover markedly”, but at that time the pain, stiffness and swelling post-operation and the pain associated with walking and standing prevented or restricted the veteran from working – Exhibit 1 T72 pp. 366-367.
In February 2014 the veteran was examined and assessed by Dr Ali Nazari.
Dr Nazari also opined that the veteran was suffering from a loss of 50% range of movement in his right knee, but was now also suffering a 50% loss of range of movement in his left knee – Exhibit 1 T80 p. 380.
In addition, Dr Nazari observed that it was “noticeable while walking” that the veteran was “afraid of someone bump him couldn’t walk properly” – Exhibit 1 T81 p. 381. Dr Nazari noted that the veteran was then employed, but was experiencing difficulty remaining in the workforce – Exhibit 1 T82 pp. 384-385.
The veteran was assessed on 15 May 2013 and he was awarded 24 points for hearing and tinnitus, 18 points for lower limbs/sciatica, 5 points each for spine and limbs – resting joint pain and for disfigurement and social impairment, for a total impairment of 45 points (rounded) – Exhibit 1 T83 pp. 389-394.
On 14 March 2014 the Respondent accepted the veteran’s application for increased disability pension and increased the pension to 80% of the General Rate effective from 15 May 2013 T84 pp. 395-399. It was noted that as the veteran was then in full-time employment he was not eligible for pension at either the Special or Intermediate Rate – Exhibit 1 T84 p. 398.
RECENT MEDICAL HISTORY
On 8 August 2014 the veteran suffered an aneurysm, which resulted in hospitalisation and being treated for a subarachnoid haemorrhage.
The veteran was initially admitted to the Emergency Department of the Proserpine Hospital. In a letter dated 9 August 2014 from the Emergency Department of the Proserpine Hospital to the Intensive Care Unit of the Townsville Hospital, the following background information was provided – Exhibit 1 T86 p. 401:
“Thankyou for accepting this 62 year old man with a subarachnoid haemorrhage
He presented after collapsing this evening in his shed at home
He had been fixing a go kart ,his wife had not heard from him for a while went to check and found him lying in a pool of vomit unresponsive.
he was brought in to proserpine hospital by ambulance…”
The veteran was discharged from the Princess Alexandra Hospital, Brisbane, on 23 September 2014. The Discharge Summary contains the following information – Exhibit 1 T103 p. 426:
“Reason for Admission/Presenting Problems
62yo male, found unconscious in the shed by wife at their daughter’s residence in Proserpine.
CT revealed subarachnoid haemorrhage with obstructive hydrocephalus.
Transferred to Townsville Hospital for emergency shunt insertion for obstructive hydrocephalus and subsequently transferred to Brisbane for definitive management of cerebral aneurysm.
Principal Diagnosis
Subarachnoid haemorrhage secondary to ruptured Anterior Communicating Artery Aneurysm…
Inpatient Clinical Management
…Had slow neurological recovery on ward
Transferred to Geriatric and Rehabilitation Unit for ongoing restorative cares and allied health input
Patient progressed to be functionally independent on ward
Discharged to Daughters house in Brisbane
For ongoing follow up with community rehabilitation
Follow up in Neurosurgery OPD…”
On 2 October 2014 the veteran lodged a Claim for Disability Pension for a ruptured cerebral aneurysm and subarachnoid haemorrhage – Exhibit 1 T105 pp. 442-448. The claim was accompanied by a letter dated 24 October 2014 from Mr Hugh Polson, Veterans’ Advocate of the Sunnybank Sub-Branch of the Returned & Services League of Australia. Relevant extracts are set out below – Exhibit 1 T105 p. 448:
“He has only recently been moved out of the Intensive Care Unit and has now commenced a ‘long period’ of rehabilitation. He suffers brain damage as a result of this aneurysm and therefore he has been advised that this could take as long as 6 months or more. For this reason he and his wife are now resident in Brisbane for the foreseeable future.
Mr Trappett has been advised that he will not be able to work again and therefore, if this claim is accepted, it is requested that he be assessed for the Special Rate of Disability Pension.”
Part F of the claim form contained questions relating to tobacco usage and alcohol consumption. In response to question 21 which asked if the veteran had ever smoked, he answered by ticking the “No” box – Exhibit 1 T105 p. 444.
On 20 October 2014 Dr Kate Lilley, Neurosurgical Resident of the Department of Neurosurgery at Princess Alexandra Hospital dictated a letter setting out the veteran’s then medical condition. Relevant portions of the letter are set out below – Exhibit 1 T106 p. 449:
“Ian Trappett is a 62yo gentleman with a grade IV subarachnoid haemorrhage secondary to a ruptured ACOM aneurysm on 10 August 2014. This was treated with endovascular angiogram and coiling on 12 August. His clinical course was complicated by vasospasm bilateral lower limb paralysis, which required intra-arterial verapamil injections. He had no seizures or SIADH during his inpatient stay. He left the acute ward of the hospital on 23 September 2014 and spent three weeks in the rehabilitation unit.
Today we have discussed the following for his ongoing care:
I am happy for him to return to Murrumba. Prior to going he should discuss with his occupational therapists their expectations for assessment required for return to driving. Queensland law demands three months exclusions from driving after subarachnoid haemorrhage and the return is conditional upon residual neurological deficits. Any formal assessment will be easier to arrange in Brisbane. I have informed Ian that the same rules will apply to returning to his hobby of go carting.
Ian is required to stay on aspirin 100 mg daily for life. This may be stopped surgical procedures if necessary. It must be restarted as soon as is clinically possible.”
The veteran’s claim was investigated by Ms Cathy Kelly, Claims Assessor, for the Respondent. On 14 November 2014 she wrote to the veteran’s treating doctors seeking information, and also wrote to the veteran on 14 November 2014 requesting that he complete a Claimant Report – Alcohol Consumption – Exhibit 1 T111 p. 455.

The veteran completed the form and it is dated 25 November 2014 – Exhibit 1 T149 pp. 556-558.
The veteran answered that he drank alcohol on a regular basis and he started to drink when he joined the RAN in 1969. In addition, the veteran stated that he drank six to eight cans of beer each week, that he had never permanently stopped drinking and that his alcohol consumption was due to, or contributed to, by peer pressure he experienced whilst he was enlisted.
On 9 January 2015 Ms Kelly, as Delegate for the Respondent, determined that the veteran’s subarachnoid haemorrhage was not related to his service – Exhibit 1 T112 pp. 456-458. In reaching this conclusion, Ms Kelly provided the following reasons – Exhibit 1 T112 p. 458:
“Mr Trappett has contended that his subarachnoid haemorrhage was caused by taking non steroidal anti-inflammatory medication for his accepted disability. Non steroidal anti-inflammatory medication is not listed in the Statement of Principles as a causal factor for subarachnoid haemorrhage and I am therefore unable to accept Mr Trappett’s contention.
Alcohol consumption
For consumption of alcohol to contribute to subarachnoid haemorrhage, the Statement of Principles cases requires drinking at least 150 grams of alcohol per week for men in respect of operational service and 200 grams of alcohol per week in respect of eligible service, for a continuous period of at least the six months before the clinical onset of subarachnoid haemorrhage.
Taking into account the alcohol questionnaire completed on 25 November 2014, I find that this factor is not met and that Mr Trappett’s alcohol consumption is not causally related to his operational or eligible service.
Cigarette smoking
Mr Trappett advised on the claim form that he has never smoked…”
On 28 November 2016 the veteran lodged a Claim for Disability Pension for “brain injury” and “left shoulders” – Exhibit 1 T120 pp. 472-486.
With respect to the brain injury claim, it was stated that the veteran first became aware of the signs and symptoms of this disability on 9 August 2014 and the diagnosis of the disability was subarachnoid haemorrhage – Exhibit 1 T120 p. 475.
The veteran attached a short Statement, dated 28 November 2016, to the claim in which he provides a fuller explanation of his brain injury claim – Exhibit 1 T120 p. 484:
“On the 9^th of August 2014 I suffered a brain aneurysm at my daughters shed in Proserpine. I was found by wife some time later in a unconscious state. I was transported to Proserpine Hospital by ambulance. Once I was stable I was sent to Townsville Hospital by the medi vac helicopter and eventually to Princess Alexandra Hospital in Brisbane for intensive care and treatment. I remained in a coma for 10 days.
As a result of the brain aneurysm I suffer from brain damage and memory loss. I have not worked since the aneurysm happened.
During my service in the Navy I have always consumed a lot of alcohol mainly from peer pressure when I joined up in 1969 until now. I have always drank beer or rum at least 30 + cans per week. When I was as sea we had beer issues, which were very cheap and I was able to get a few extra from the non drinkers in the mess. The cans were large at least 750 ml or we were issued 4 x 375 Ml…”
With respect to the “left shoulders” claim, the signs and symptoms were described in a attached Statement of the veteran dated 25 November 2016 – Exhibit 1 T120 p. 483:
“I served at HMAS Harman between August 1973 to Sept 1976 and from Feb 1983 to July 1984 I started to play rugby league for Harman in the 1974 season. The team was participating in the local weekend civilian competition. Each player was requested to fill out a request form to play, to cover any medical injury and repatriation that may occur through the season, and it went to the Commanding Officer of HMAS Harman for approval. This request was done at the beginning of each season.
During the season I injured my shoulder, I went to the sick bay after the game. My shoulder was strapped and put in a sling and I was given a few days light duties. I had a x-ray done the next day…”
The veteran also completed a Claimant Report – Aspirin Subarachnoid Haemorrhage – Exhibit 1 T124 pp. 492-493.
Question 2 asked if the veteran had taken aspirin within the 21 days before the first signs or symptoms of subarachnoid haemorrhage. In response, the veteran advised that he had ingested 150 mg of Tramadol on 16 July 2014 for knee pain, 12.5 mg Stemetil for knee pain and 100 mg of aspirin on 20 May 2013 following a knee operation – Exhibit 1 T124 p. 492.
The veteran also completed a Claimant Report – Smoking in which he claimed, contrary to earlier information provided to the Respondent, that he had smoked tobacco during his recruit school training – Exhibit 1 T126 p. 496. He claimed that he started smoking one packet of cigarettes per week at the beginning of recruit school training, but this increased to about two packets of cigarettes a week by the end of the training. It was claimed that this habit started because of peer pressure and that the veteran ceased smoking after leaving the Navy – Exhibit 1 T126 p. 497.
The veteran also completed an Alcohol Questionnaire which is dated 28 February 2017 – Exhibit 1 T127 pp. 499-501. The claimed quantity of alcohol consumed by the veteran during his service is markedly at variance with the quantity stated in earlier reports.
In this document the veteran stated that he started consuming alcohol after joining the Navy and drank 30 plus cans of beer each week as well as 26 to 30 nips of rum per week – Exhibit 1 T127 p. 499.
The causal connection between alcohol consumption and service was stated to be as follows – Exhibit 1 T127 p. 500:
“I joined the Navy in 1969. I was 17 yr old. While I was at recruit school it was important to fit in with everyone and there was a lot of peer pressure. I drank on our weekend leave as it was easy to get served while in uniform. When I left recruit school I and the rest of my class were posted to HMAS Vendetta. So I still had all of my mates around. During our training we found out we were going to Vietnam. All our time off was taken up drinking in pubs + clubs. This would be my first time away so the drinking did not stop.
After our tour the drinking didn’t stop or ease off. It has stayed the same for the rest of my service (20 yrs) and has stayed the same up to now.”
Subsequently, Medical Impairment Assessments, as well as diagnostic and medical reports, were completed by Dr Trevor Small, General Pracitioner, on 28 February 2017, in respect of the veteran’s accepted and claimed conditions – Exhibit 1 T128-143 pp. 502-527.
In the Medical Report – Alcohol Consumption Subarachnoid Haemorrhage, Dr Small noted that the veteran did not have a history of alcohol use or dependence, did not have a history of alcohol consumption as part of a psychiatric condition and did not have a history of using alcohol as “self medication” – Exhibit 1 T140 pp. 521-522.
In the Medical Report – Onset of Subarachnoid Haemorrhage, Dr Small opined that he date of clinical onset was August 2014, and that cause of the haemorrhage was the “rupture of anterior communicating artery aneurysm”. The underlying pathology of the subarachnoid haemorrhage was noted to have worsened with “permanent neurological deficits” – Exhibit 1 T142 p. 525.
Dr Small opined in Medical Report – A Severe Stressor Aggravating Hypertension Subarachnoid Haemorrhage that the veteran did not suffer from hypertension before the clinical onset of subarachnoid haemorrhage – Exhibit 1 T143 p. 526.
In a Combined Impairment Report dated 22 March 2017, Dr Ian Rossiter, assessed the veteran as having a total impairment (rounded) of 40 points, comprising 23 points for hearing and tinnitus, 20 points for spine and limbs – lower limbs/sciatica, 2 points spine and limbs – resting joint pain and 2 points disfigurement and social impairment – Exhibit 1 T144 p. 528.
On 22 March 2017 a Delegate of the Respondent decided that the veteran’s claimed conditions of rotator cuff syndrome of the left shoulder and subarachnoid haemorrhage were not related to service and that the veteran’s disability pension was to be continued at 80% of the General Rate – Exhibit 1 T145 pp. 535-542.
The following reasons were given for rejecting the veteran’s contention that his subarachnoid haemorrhage was caused by alcohol consumption during service – Exhibit 1 T145 p. 539:
“Alcohol consumption
Operational Service
For the consumption of alcohol to contribute to Subarachnoid Haemorrhage, the Statement of Principles in reasonable hypothesis cases requires drinking at least 7.5 kg of alcohol for men and 5kg of alcohol for women within the year immediately before the clinical onset of Subarachnoid Haemorrhage. There is a history of alcohol consumption meeting these requirements in the Statement of Principles, however, operational service did not make a material contribution to this.
Eligible Service
For the consumption of alcohol to contribute to Subarachnoid Haemorrhage, the Statement of Principles in balance of probability cases requires drinking at least 10kg of alcohol for men and 7.5kg of alcohol for women within the year immediately before the clinical onset of Subarachnoid Haemorrhage. There is a history of alcohol consumption meeting these requirements of the Statement of Principles, however, eligible service did not make a material contribution to this.”
The Delegate also had regard to the veteran’s history of aspirin consumption and cigarette smoking and concluded that in neither case did he meet the requirements of the Statement of Principles (SoPs) – Exhibit 1 T145 p. 540.
The veteran sought review of the Delegate’s decision, and on 30 January 2018 the VRB affirmed the decision in every respect. With respect to the claimed condition of subarachnoid haemorrhage, the VRB said – Exhibit 1 T153 p. 578:
“34. The veteran signed an alcohol questionnaire dated 28 February 2017 (ff144-146) in which he stated that he regularly drank ‘30+ cans per week. Plus rum 26 to 30 nips P/W (f.144) after joining the Navy in February 1969. He described his young age on enlisting (17 years old) and peer pressure to fit in. Once posted to Vietnam, he wrote that all their time off was taken up by drinking in pubs and clubs. He stated that his level of drinking stayed the same for the rest of his 20 years of service and up until he had the subarachnoid haemorrhage in August 2014, at which time he stopped drinking (f.146).
35. The Board noted that Dr Small answered ‘no’ to the question whether there was a history of alcohol abuse or dependence (f166).
36. The SOP factor does not require a history of dependence or abuse. It simply requires consumption of a certain quantity of alcohol. Based on the alcohol questionnaire, the veteran would more than meet the required quantity of alcohol consumed. The issue for the Board then, is to determine what is the causal connection if any, between alcohol consumption and service.
37. On the evidence available, the Board could not find sufficient material to support a finding that alcohol consumption is causally connected with the circumstances of the veteran’s service. He has described his young age on enlistment and peer pressure, but those reasons are insufficient in themselves to find a casual connection between service and his level of alcohol consumption continuing for a further 25 years after the end of his service.”
The VRB noted that the evidence did not support a finding that the veteran stopped smoking in the 1970s and that the evidence did not support a finding that the veteran continued to smoke until 2004 – Exhibit 1 T153 p. 578.
The VRB also found that the evidence did not support a finding that the veteran was ingesting the required amount of aspirin for the requisite period before the onset of subarachnoid haemorrhage – Exhibit 1 T153 pp. 578-579.
ISSUES
It is not contested that the issues that fall to be determined by the Tribunal, are, firstly, does the veteran suffer from any or all of the following conditions:
·left shoulder osteoarthritis; and
·subarachnoid haemorrhage.
If an affirmative response is evinced in either or both cases, then the Tribunal must determine if the veteran satisfies the criteria prescribed in the relevant SoP such as to establish a causal relationship, on the relevant standard, that connects the conditions to service rendered by the veteran.
If the Tribunal finds in either or both cases in favour of the veteran, it is also not contested, that the matter be remitted to the Respondent for assessment of pension – Respondent’s Submissions (RS) p. 2.
HEARING
The Tribunal convened a Hearing in Brisbane on 3 June 2019. The veteran was represented by Mr Harding of Counsel, instructed by Terence O’Connor, Solicitor. The Respondent was represented by Mr Peter Crethary of Moray & Agnew Lawyers.
The veteran gave evidence and was cross-examined, as was his wife Ms Leone Trappett.
Dr Peter Sharwood, Orthopaedic Surgeon, was called to give evidence by the veteran and was cross-examined by Mr Crethary.
Leave was given for the parties to provide to the Tribunal and each other written submissions. The veteran’s legal representatives provided Concluding Submissions (CS) dated 26 June 2019 and the Respondent did likewise in its RS dated 10 July 2019. The veteran responded in a document entitled Applicant’s Outline of Submissions in Reply (AOSR) which is dated 16 July 2019.
The legal representatives of both the veteran and the Respondent made submissions to the Tribunal on the basis that SoP No. 67 of 2010 was applicable. In fact, SoP No. 67 of 2010 was replaced by SoP No. 67 of 2019 on 21 June 2019.
In Submissions on Behalf of the Applicant and Respondent dated 9 August 2019, a thorough comparison of the two SoPs was undertaken. The Tribunal is satisfied that Factor 6(b) in SoP No. 67 of 2010 has been replicated in Factor 9(11) of SoP No. 67 of 2019. In short, there is no substantive difference between the SoPs so far as the issue of alcohol usage is concerned.
As the parties have referred throughout their submissions to SoP No. 67 of 2010, the Tribunal will continue to refer to that SoP. However, though for ease of reference this option has been adopted, it needs to be appreciated that the operable SoP is No. 67 of 2019.
LEGAL OVERVIEW
It is not contested that the veteran has rendered both operational service (15 September 1969 – 11 April 1970) and eligible service (7 December 1972 – 11 April 1970).
The veteran’s claimed condition of subarachnoid haemorrhage requires consideration of periods where both operational and eligible service were rendered, whereas the claimed condition of left shoulder osteoarthritis only requires consideration of the period of eligible service. As different standards of proof apply to each service, a brief discussion of both is set out below.
It is important to note at the outset that a reverse criminal standard of proof is prescribed in s 120(1) and (3) of the Veterans’ Entitlements Act 1986 (Cth) (the Act) where a veteran has rendered, inter alia, operational service, and the relevant injury or death is “war-caused”.
The less generous civil standard of proof, namely the standard of “reasonable satisfaction” is prescribed by s 120(4) of the Act. In this matter, the veteran’s eligible defence-service attracts this standard of proof.
In Repatriation Commission v Smith (1987) 15 FCR 327 Beaumont J (with whom Northrop and Spender JJ agreed) made the following observations about the test of “reasonable satisfaction” in s 120(4) (at 334-335):
“It will be remembered that s 120(4) provides that the Commission shall decide the matter ‘to its reasonable satisfaction’. As has been noted, the Tribunal thought that this degree of satisfaction was:
‘possible … when it appears from the nature of the veteran’s prior employment that there is a real possibility, as distinct from a fanciful one, that remunerative work for more than eight hours a week would have been likely’…
By contrast, s 120(4) speaks in terms of a reasonable satisfaction. This expression has a settled meaning, at least in a curial context. In Bringinshaw v Bringinshaw (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at 362):
‘it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. [Emphasis added.]’…
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigiation… it should have asked itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…”
Before turning to the reverse criminal standard of proof, it should be noted that the SoP regime explained below applies to all service rendered under the Act – ss 120A-120B. There are two SoPs prescribed for each compensable condition – a reasonable hypothesis SoP (s 120A) and a balance of probabilities SoP (s 120B). In all or almost all instances, the Factors prescribed in a reasonable hypothesis SoP are more generous than those prescribed in the comparable balance of probabilities SoP.
A member of the Defence Forces who has rendered continuous full-time service in an operational area, as specified in s 6C(1) of the Act, is taken to have rendered operational service in the operational area. The term “operational area” is defined in s 5B(1) as an area described in column 1 of Schedule 2 of the Act during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1. For present purposes, it is sufficient, to note that the veteran’s service in South Vietnam in 1969-1970 meets the requirements of rendering operational service in a specified operational area.
Part II of the Act provides, inter alia, for pensions for veterans who have become incapacitated from a war-caused injury or a war-caused disease.
For the purposes of the Act, an injury suffered, or a disease contracted, is taken to be “war-caused” if, inter alia the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service – s 9(1)(a).
It is not contested that a claim under Part II that relates to operational service rendered by a veteran is assessed by reference to a reasonable hypothesis SoP – s 120A(1)(b)(ii).
Pursuant to s 13 where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the member – s 13(1).
Subsection 120(1) provides, inter alia, that where a claim under Part II is made in respect of incapacity from a veteran’s operational service, the Commission shall determine that the injury or disease was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
It should be noted that s 120(1) does not create a presumption that an injury or disease was war-caused, nor does it impose an onus on a veteran to prove that it is – Repatriation Commission v Deledio (1998) (Deledio) 83 FCR 82 at 98.

Subsection 120(3) then outlines one circumstance where the Commission is required to find that there is “no sufficient ground” for the purposes of s 120(1) and (2). The Commission is required to find that there is no sufficient ground that an injury or disease was war-caused if:
“after consideration of the whole of the material before it, [the Commission] 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.”
This subsection was explained in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell) by Mason CJ, Deane and McHugh JJ (at 413-414) as follows:
“Notwithstanding the submission of counsel for the Commission, s.120(3) is not exhaustive of the content of s.120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact…
The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
In East v Repatriation Commission (1987) 16 FCR 517, the Full Federal Court observed that the relevant hypothesis must “find some support” in the evidence adduced and that the evidence must “point to, and not merely leave open” the hypothesis relied upon – at 532.
The difficulties inherent in ascertaining from the evidence adduced, particularly that of a medico-scientific nature, the existence of a causal connection between service and the claimed injury or disease, was addressed by the insertion of s 120A. The purpose of this section was to provide a sound and consistent basis for determining the reasonableness of a hypothesis from a medical/scientific perspective.
Subsection 120A(3) relevantly provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting… a disease contracted by 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);…”
Similarly s 120B(2) is the comparable provision for reasonable satisfaction matters.
Section 196A establishes the Repatriation Medical Authority (the Authority). The main function of the Authority is to determine SoPs – s 196B(1).
If the Authority is of the view that, on the sound medical-scientific evidence available, it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
·the factors that must exist; and
·which of those factors must be related to the service rendered by the veteran;
·before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service – s 196B(2).
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14). The relevant circumstance for this matter is:
“(a) it resulted from an occurrence that happened while the person was rendering that service…”
It is helpful in this context to set out the following observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
“it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to ‘provide the template within which the individual claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
Therefore when s 196B(2) says a factor ‘must … exist’ and ‘must be related to service’ it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis. Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i)contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.”
The methodology to be adopted in reaching a decision mandated by ss 8, 13 and 120 as to whether an injury or death is “war-caused” was explained on appeal by Beaumont, Hill and O’Connor JJ in Deledio as follows (97-98):
“1. The Tribunal must consider all of the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (110..
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
The Deledio methodology is a helpful tool, but is clearly not a substitute for complying with the requirements of the Act. To apply the Deledio methodology in a mechanistic manner and without proper regard to compliance with the Act would lead a decision-maker into error: Dunlopv Repatriation Commission [2003] FCAFC 201 at [33], Hardman v Repatriation Commission [2005] FCAFC 83 at [32].
It is important to highlight this caveat as the suggestion made by the Full Court in Deledio that if there is no SoP the application must fail, has been recognised as being incorrect – Woodward v Repatriation Commission [2003] FCAFC 160 at [55]. If there is no SoP then the question of causation falls to be determined under s 120(1) and (3) rather than s 120A – Repatriation Commission v Hancock [2003] FCA 711 at [10].
There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 (Collins) as follows (284-285):
“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:
1whether the claimant was a veteran, or a dependant of a deceased veteran;
2whether the veteran has suffered an injury or disease or has died...; and
3… the cause of death or the ‘kind of death’ of the veteran…
those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”
CONSIDERATION
Osteoarthritis of the Left Shoulder
Introduction
It is not contested that the veteran suffers from left shoulder osteoarthritis and that the veteran was first diagnosed as suffering from this ailment on 17 November 2016 following radiological investigations undertaken by Dr Small – RS p. 2.
The veteran contends that he dislocated his left shoulder while playing rugby league football for the RAN in 1978. A RAN Outpatient Record states that on 11 September 1978 the veteran “(l)and heavily on (L) shoulder whilst playing football. Stiffness and pain ++” – Exhibit 2 S1 p. 156.
In his Statement of 18 June 2018 the veteran provided the following brief account of his football injuries – Exhibit 3:
“63. I first injured my shoulder was [sic] playing rugby league at HMAS Harman in 1974. I was injured in a spare tackle and lost consciousness and was heavily concussed. I was hospitalised as a result of this incident.
64. I injured my shoulder again in 1978 when playing football at HMAS Coonawarra. The second injury involve [sic] the dislocation of the shoulder.”
The veteran provided more details of his football injuries in his Supplementary Statement which is dated 14 December 2018 – Exhibit 4. Relevant extracts from this Statement are set out below:
“5. The injury was very painful and I would estimate that the pain was at the level of 9/10 until I received painkilling medication. The shoulder was very tender. The pain and tenderness lasted for many weeks. Indeed, the pain from the original injury became constant and permanent from the date of injury until now. The loss of range of movement was also constant from the date of the injury until now.
6. I wore the sling for at least 14 days…
7. As I say, the pain from the shoulder injury has been permanent and continuous since the date of the injury and the intensity of the pain varies between 5/10 and 8/10 depending upon my level of activity.
8. When I stopped wearing the sling after about 14 days, the shoulder was still very sore with any movement. I lost the ability to raise my right arm above shoulder level without pain and discomfort due to this injury. When I tried to lift my left arm above my left shoulder, I always suffered pain and discomfort at a moderate level.
9. At that time, my usual duties did not require me ordinarily to lift or otherwise raise my arms above shoulder level…
10. The loss of above shoulder function of my left shoulder became permanent. I managed to cope with my day-to-day duties in the Navy even when I was serving on-board ship. Serving on-board ship meant that I was required from time to time to scale ladders and gangways. Because the rails were not high, I was able to manage these activities using my right arm. I adapted the way that I did things so that the loss of function in my left shoulder did not cause me any problems in normal day-to-day living activities or in my job. Once again, my duties did not require any real lifting or other activity above shoulder level.”
Factor 9(6) Statement of Principles No. 62 of 2017 – Osteoarthritis (Balance of Probabilities)
It is also not contested that the relevant SoP is No. 62 of 2017. The veteran relies on Factor 9(6), namely:
“having trauma to the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint.”
The term “trauma to the affected joint” is defined in Schedule 1 of the SoP to mean:
“a discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, of symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset, save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves one of the following:
(a)immobilisation of the joint or limb by splinting or similar external agent;
(b)injection of corticosteroids or local anaesthetics into that joint; or
(c)surgery to that joint.”
Evidence of Dr Sharwood
The veteran relies on the medical report of Dr Sharwood dated 16 January 2019 (Exhibit 7) as well as his testimony at the Hearing.
Dr Sharwood observed that his report was “based on the history provided by Mr Trappett, the appropriate clinical examination and the documentation provided” – Exhibit 7 p. 2.
Later in his report, Dr Sharwood noted that “Mr Trappett denied any previous injuries to his shoulder” – Exhibit 7 p. 3.
Dr Sharwood also observed that the veteran “says he does not recall having any surgery. He had no specialist referral at the time… He had no specialist review and he has only had one injection into his shoulder in 2014” – Exhibit 7 pp. 2–3. However, Dr Sharwood noted that images “were taken and the report suggested that he had damage to the acromioclavicular joint” – Exhibit 7 p. 2.
It is not totally clear what report Dr Sharwood is referring to; however in the Outpatient Record of 11 September 1978, the following notation is ascribed to “Radiographer. Darwin Hospital” – Exhibit 2 S1 p. 156:
“There is a minor degree of dislocation of the acromic-clavicular joint.”
Dr Sharwood opined that the veteran shows evidence of osteoarthritis of the acromioclavicular joints “and it is from this that most of his symptoms are arising” – Exhibit 7 p. 5. Later in his report Dr Sharwood opined that the veteran suffers from osteoarthritis of the acromioclavicular joint of both his left and right shoulders, and there are minor age-related degenerative changes affecting the gleno-humeral joints of both shoulders – Exhibit 7 p. 6.
The onset of osteoarthritis of the left acromioclavicular joint was estimated by Dr Sharwood to have been about 20 years after the 1978 injury, and he posited 2000 as the likely onset date. However, Dr Sharwood also noted that it was not diagnosed radiologically until 2014, but nonetheless he opined that it was reasonable to assume that the veteran developed degenerative changes from the time of his 1978 rugby league accident – Exhibit 7 p. 6.
Dr Sharwood also gave some very definite opinions about the causal linkage of the 1978 rugby injury and the veteran’s current left shoulder condition – Exhibit 7 p. 7:
“With respect to the Statement of Principles with regard to osteoarthritis of the acromioclavicular joint, there is clear evidence that he had trauma to the joint and this has been documented in 1978. It is reasonable to assume that he probably developed osteoarthritis within twenty-five years of that date however it was not diagnosed until 2014, which is thirty-six years later.
With respect to your discussion of the osteoarthritic condition and the application of the Principles, there is no doubt that Mr Trappett did suffer significant trauma to his acromioclavicular joint. This did cause him immediate pain and discomfort and did require treatment at the time. It is likely that he developed osteoarthritis of the acromioclavicular joint in the twenty-five year period following that injury, however the diagnosis was not made until thirty-six years later.
Although the radiologists suggest that there is minor change of arthritis of the glenohumeral joints of both shoulders, this is not relevant and would not have been related to the trauma in 1978. I am of the opinion that the degenerative changes within the glenohumeral joints of the shoulders that are seen now are age related.”
The Tribunal had the benefit of also listening to the testimony given by Dr Sharwood. Mr Harding asked Dr Sharwood to explain the pathological process he expected would have occurred after the veteran was injured in 1978. Dr Sharwood’s response was as follows – Tr. 3 June 2019 p. 24:
“Well, everything showed that the joint had been subluxed or dislocated. You know, it was out of joint. The articular surfaces which are not very – they are very thin cartilage surfaces, there’s not a lot of articular cartilage there in that joint – had been stretched, taken away from their normal milieu and are subject to damaging, and because they are not very thick, it doesn’t take a lot of damage to destroy them, and once the articular cartilage becomes destroyed, it deteriorates and you develop the condition of osteoarthritis which is the long term effect of losing the articular cartilage, and that of course occurs in very many joints in the body, but it does particular occur here, quite commonly.”
Dr Sharwood went on to testify (Tr. 3 June 2019 p. 25) that the veteran suffered trauma to his joint and it never went back into position. This resulted in constant damage to his cartilage and the development of osteoarthritis at a rapid rate. In the case of the veteran, Dr Sharwood opined that degenerative changes would have occurred within 12 to 18 months.
Dr Sharwood was cross-examined by Mr Crethary and was first asked about that part of his report where he observed that the veteran had ongoing symptoms from the time of the 1978 rugby accident – Tr. 3 June 2019 p. 26:
“Yes. Can you just tell me, please, where did you obtain the information that he had had ongoing symptoms from 1978?---He told me that.
He told you? So, it’s based on what he told you, correct?---Yes.”
Next, Mr Crethary asked Dr Sharwood about the extent of medical evidence he had seen from the time of the 1978 rugby accident – Tr. 3 June 2019 p. 26:
“Excellent. Were you given the medical records at all as part of the assessment?---Yes. Yes. Well, I was given some medical records, I wasn’t – they’re not a lot. Navy medical records are pretty poor at the best of times.
And were you able to locate any radiology between 1978 and September 2003, apart from the initial X-Ray?---No, I was given none.
Okay, all right, and were you able to identify any records of the applicant attending for medical treatment from September 1978 through to September 2003?---Not on the information I was given, no.”
Consideration
The first issue and fundamental issue is to determine if the veteran had trauma to the affected joint within 25 years before the clinical onset of osteoarthritis of that joint. This necessarily requires the Tribunal to determine the date of clinical onset. That term has been the subject of numerous Tribunal and Federal Court decisions. Attention can first be given to the decision of Branson J in Repatriation Commission v Cornelius [2002] FCA 750 (Cornelius). In that matter the veteran was engaged in repetitive work and subsequently developed carpal tunnel syndrome. The relevant SoP provided that the clinical onset of the condition had to be no more than 30 days after the repetitive work ceased. Her Honour made the following observations:
“[26] Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression ‘clinical onset’ as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that:
‘… there is a clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…’
[27] By inference the Tribunal rejected the view of ‘clinical onset’ taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression ‘clinical onset’ in clause 5(a) of the SoP. For present purposes, therefore, Professor Sambrook’s opinion that ‘[t]he earliest date of clinical onset on the carpal tunnel syndrome is 1993 (see [8] above) may be disregarded.”

This part of her Honour’s judgment was quoted with approval by the Full Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331 at 335-336/[13] (Lees).
The Full Federal Court in Kaluza v Repatriation Commission [2011] FCAFC 97 also endorsed this “test” and held that the test for determining the date of clinical onset is disjunctive, not cumulative – at [62]–[66].
Lees is of relevance to this matter as the factual matrix bears some similarities. Mr Lees was refused a service pension for generalised anxiety disorder, gastro-oesophageal disease and alcohol abuse which were claimed to be related to stressful incidents during operational service in Vietnam.
The Full Court held, first, that it is not sufficient to find clinical onset within the requisite period if only one of the prescribed conditions has manifested itself – 336-337/[15]-[16].
Second, the Full Court held that the Tribunal erred by failing to consider evidence of Mr Lee’s treating doctor about what he was told by Mr Lees as evidence which might bear upon the question of whether the clinical onset of the disorder occurred with the requisite period of the stressors.
The Full Court (Heerey, Moore and Kiefel JJ) made the following observations (338):
“[21] Counsel for the appellant submitted that even in proceedings in which the laws of evidence apply, evidence of a doctor of facts recounted to him or her by the patient and on which the doctor’s opinion is based, is probative of those facts… The Tribunal is not bound by the rules of evidence: see s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and is obliged, by s 120(3) of the Act to consider all material before it in determining whether a reasonable hypothesis is raised.
[22] Counsel for the appellant submitted that the Tribunal failed to consider the evidence of Dr Ewers (both oral and in his report) concerning what he had been told by the appellant about when the symptoms were first manifest. We accept that in the context of proceedings in the Tribunal, the evidence of Dr Ewers concerning what he was told by the appellant about the symptoms might be viewed as probative of when they were first manifest. If, on a fair reading of the Tribunal’s reasons, it can be inferred that it did not pay regard to this evidence of Dr Ewers, then it may have failed to discharge the obligation imposed by s 120(3). It would not be, however, a failure to take into account relevant considerations as submitted by counsel for the appellant.”
The Respondent contends (RS para 6 p.3) that the date of clinical onset must be supported by medical evidence, and, further, that “this must be contemporaneous medical evidence from which a doctor can conclude that a disease was present at that time.”
The first part of the Respondent’s submission is uncontroversial. All of the relevant authorities support the fundamental proposition that the date of clinical onset is determined by medical evidence and not non-medical evidence adduced by an applicant. However, Mr Harding contends that the second part of the Respondent’s contention is not supported by authority – AOSR para 1.
The Tribunal’s attention was drawn to Richards and Repatriation Commission [2012] AATA 308 (Richards), a decision of Senior Member Kenny.
Mr Richards served in the Australian Army from 3 May 1945 until 13 December 1946. The claimed service-related condition was bilateral knee osteoarthritis and the issue in contention was whether there was clinical onset of the condition by 1971, the conclusion of the 25 year period after Mr Richards’ service.
Senior Member Kenny summarised the evidence before him as follows:
“[8] Mr Richards’ evidence was that he experienced knee pain during his service and that this worsened after his discharge from the Army. He recalled having surgical procedures on his knees in the late 1940s and early 1950s as well as receiving massage treatment at that time. His treating practitioner, Dr Graham Welch, described, in Mr Richards’ claim form, a long history of knee pains and diagnosed marked degenerative arthritic changes in both knees. Dr Vecchio also diagnosed bilateral knee osteoarthritis and recorded a history consistent with that outlined above from Mr Richards. In reports, dated 30 November 2011 and 3 January 2012, Dr Vecchio expressed the opinion that, on the basis of the history described by Mr Richards, the clinical onset of his osteoarthritis in the knees was prior to 1971.”
Mr Kelly, on behalf of the Respondent, submitted in effect that not only was there a legal requirement for the clinical onset of osteoarthritis to be confirmed objectively by radiological or other medical measures, but, in addition, that such evidence be available within the requisite 25 year period. In rejecting this submission, Senior Member Kenny made these observations:
“[12] I have noted the submission of Mr Kelly. I accept that, for a diagnosis of osteoarthritis to be made, the objective requirements of the meaning ascribed to the condition in paragraph 3(b) of the SoP must be met. At the time of making a diagnosis, the medical practitioner would be able to obtain such evidence. However, when applying the SoP, the process of determining clinical onset will frequently require consideration of matters many years earlier, in this case up to 25 years, when an accurate assessment based on objective criteria may not be possible. The decisions in Lees, Cornelius and Kaluza do not make the distinction described by Mr Kelly and I am satisfied that the opinion of Dr Vecchio of the clinical onset of osteoarthritis in Mr Richards should be adopted.”
Mr Harding submitted (AOSR para 4) that the Respondent’s submissions make the determination of clinical onset dependent on the vagaries of when a veteran first attends for medical examination.
The Tribunal agrees with Mr Harding that the adoption of the Respondent’s submission could lead to unfair and, potentially, illogical results. Further, the Tribunal is not satisfied that there is a sound legal basis for such a proposition.
The authorities quoted earlier support the proposition that the date of clinical onset is to be determined objectively and professionally and is not determined by the self-assessment of a veteran or on a basis that is not grounded in medical science.
It is often the case, however, that a veteran may experience pain and suffering, but not seek medical assistance for some time; even years after the onset of conditions. This is particularly the case when dealing with veterans who were suffered an injury or disease caused by operational service many years ago when access to medical practitioners was limited by money, geography or other factors, including the reluctance of some people to seek medical assistance.
The framers of the Act were alive to this situation and s 119 provides that the Respondent is not bound by technicalities. In particular, s 119(1)(h) requires the Respondent to “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 reasonable reason attributable to” and the subsection then goes on to refer to the effects of the passage of time on the availability of witnesses and the absence of, or any deficiency in, official records.
The test of clinical onset articulated by Branson J in Cornelius, and expounded upon by the Full Federal Court in Lees and Kaluza, specifically accepts the notion that a medical practitioner can make a finding of clinical onset based on the self-reporting of a veteran, and in circumstances where the self-operating relates to incidents or symptoms many years before the diagnosis is made. If this were not the case then many veterans would be denied their rightful entitlements because of events or circumstances beyond their control and which would be at odds with the beneficial operation of the Act.
However, while the absence of any medical treatment or diagnosis within the requisite period is not fatal to a veteran’s claim, it necessarily requires the Tribunal to carefully assess the subsequent medical evidence, and, in particular, the basis on which that subsequent diagnosis was made.
In this case, Dr Sharwood’s conclusion that the veteran had suffered ongoing symptoms since 1978 was based entirely on the veteran’s version of events. This, of course, is not fatal, and it is often the case that medical diagnoses are based on the self-reporting of a veteran. However, in such cases questions necessarily arise which require a sensible response, namely:
·did the veteran at any time following the relevant accident/incident seek medical intervention?;
·are there any contemporaneous records of the veteran suffering pain and discomfort from the claimed condition;
·has the veteran called to give evidence on his behalf any independent person who has personally witnessed the veteran’s pain and discomfort from the claimed condition;
·if there is no record of medical intervention, no contemporaneous records and no independent witness called in support, why is this the case?
The last question can often be answered by the vagaries of the passage of time (s 119(h)(i)) or the personal circumstances of the relevant veteran. For example, an elderly veteran who, on return to civilian life, and working in remote locations, may not have had the opportunity or the ability to seek medical intervention, and, through the effluxion of time, those persons who could have been called in support of his or her case, may have passed away or cannot be located.
In this matter, the veteran suffered his shoulder injury when serving in Darwin. He continued serving in Australia and, following his discharge, resided in Australia. The evidence before the Tribunal indicates that the veteran’s post-service employment in the hospitality and food/beverage industry was continuous and relatively well paid. In short, if the veteran was suffering the degree of pain and discomfort claimed, it is unusual that there is no medical evidence to back up his claims.
It is also the case that the veteran’s wife since December 1971, Ms Leone Trappett, provided a Statement to the Tribunal (Exhibit 6) and also gave evidence at the Hearing (Tr. 3 June 2019 pp. 21-22).
In her Statement, Ms Trappett refers to the veteran suffering service related rugby league injuries in 1974 and 1978 – Exhibit 6 paras 18-19. However, neither in her Statement nor when giving evidence, did Ms Trappett make any reference to the veteran suffering ongoing symptoms from 1978. It is somewhat striking that Ms Trappett provided extremely detailed information in her Statement of the veteran’s alcohol consumption habits, but provided no information about the claimed shoulder pain and discomfort he has claimed.
The veteran’s shoulder injury occurred on 10 September 1978, and, accordingly, clinical onset of the left shoulder osteoarthritis must have occurred on or before 10 September 2003 to satisfy the 25 year requirement of Factor 6(6) of SoP No. 62 of 2017.
The Tribunal agrees with Mr Crethary that the date of clinical onset in this matter is 17 November 2016 following radiological investigations undertaken at the referral of Dr Small. The Tribunal has reached this conclusion because:
·no logical or persuasive reason has been advanced for the absence of any records, medical or otherwise, of the veteran suffering shoulder pain and discomfort from the date of the 1978 rugby league accident;
·no logical or persuasive reason has been advanced for the veteran not seeking medical intervention for the left shoulder injury symptoms in the 25 years following the 1978 rugby league accident;
·the absence of any corroborating evidence from the veteran’s wife;
·the absence of any independent evidence from a third party corroborating the veteran’s claimed shoulder pain and suffering following the rugby league accident, or of any reason why such evidence was not produced.
As the veteran does not satisfy the requirements of Factor 6(6), it is not necessary to discuss whether the Factor was related to relevant service rendered by the veteran pursuant to Cl. 10 of SoP No. 62 of 2017.
Subarachnoid Haemorrhage
Introduction
It was not contested that at the time of the Hearing the SoPs applicable to the veteran’s claimed subarachnoid haemorrhage condition were Instruments 67 and 68 of 2010. Mr Harding, however, focused on SoP No. 67 of 2010, and the Tribunal will deal with the requirements of that SoP. As the Tribunal finds the veteran has satisfied the requirements of SoP No. 67 of 2010, it is not necessary to consider SoP No. 68 of 2010.
In addition, it is also not contested that the veteran’s claimed condition is said to have been linked to a war-caused consumption of alcohol.
Although the Respondent (RS para 16 p. 4) has drawn the Tribunal’s attention to factors relating to smoking cigarettes and the ingestion of aspirin, neither of these factors were pressed by Mr Harding. Accordingly, the Tribunal’s attention will be directly solely towards the Factor relating to alcohol consumption.
Factor 6(b) of SoP No. 67 of 2010
Factor 6(b) requires, for males, the consumption of an average of at least 150 grams of alcohol per week for a continuous period of at least six months before the clinical onset of subarachnoid haemorrhage before it can be said that a reasonable hypothesis has been raised connecting the said condition with the circumstances of the veteran’s service.
Antecedent Inquiries
As explained in Collins, it is necessary to deal with certain antecedent threshold issues.
It is not contested that the veteran rendered operational service whilst serving onboard HMAS Vendetta from 15 September 1969 until 11 April 1970.
It is also not contested that the veteran suffered a subarachnoid haemorrhage – RS para 13 p. 4.
As the veteran has not passed away, an inquiry into the “kind of death” is not relevant to this matter.
Deledio Methodology – First Step
The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3). At this initial stage, the Tribunal does not engage in a fact-finding exercise.
The Tribunal is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon – Forrester v Repatriation Commission [2013] FCA 898 (Forrester) at [14]. Moreover, as Mortimer J pointed out in Forrester (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption.
In this matter, as previously noted, the hypothesis raised by the veteran is that his subarachnoid haemorrhage “was caused by a war-caused consumption of alcohol” – CS para 18.
It was not contested by the Respondent that Step 1 is met.
Second Step
It is not contested that the relevant SoP for a reasonable hypothesis inquiry is SoP No. 67 of 2010.
Third Step
The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in SoP No. 67 of 2010.
When applying the Deledio methodology, the issue of “reasonableness” arises in both Steps 1 and 3. The Tribunal is required to assess reasonableness from both a factual and a medical/scientific prism. Assistance is obtained from the following observations of Mortimer J in Forrester:
“[32] The reasonableness of a hypothesis is in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…”
It is not necessary for every element of an hypothesis to be supported, or pointed to, by the material before the Tribunal. Only the essential elements of the hypothesis must be addressed – Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352 at 364/[59] (Ellis).
However, it is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met. The material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran – Ellis at 365/[63].
While not disputing Step 1, the Respondent contends that the veteran’s claim fails at Step 3.
Before dealing with the Respondent’s submissions, it should be noted that the date of “clinical onset” is not disputed. Both parties agree that the medical evidence supports a finding of a date of clinical onset of 8 August 2014 – RS para 17 p. 5.
The Respondent made the following submissions – RS para 18 p. 5:
“The Respondent submits that the available medical evidence fails to support a finding that:
(a)the Applicant had a significant alcohol consumption issue caused by his service; and
(b)causation aside, the Applicant meets the quantitative requirements of the SOP in terms of any alcohol consumption.”
The first issue to be dealt with is whether the evidence before the Tribunal satisfies the requirement of Factor 6(b) that the veteran was consuming an average of at least 150 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of the subarachnoid haemorrhage.
“Alcohol” is defined in Cl 9 of SoP No. 67 of 2010, and reference is made to the Australian Standard of 10 grams of alcohol per standard drink. As a consequence, the Tribunal must be satisfied that the veteran was drinking 15 or more standard drinks per week in the six months prior to suffering the subarachnoid haemorrhage.
A 375 ml can of full strength beer (4.8% Alc Vol) contains 1.4 standard drinks and a nip (30 ml) of high strength spirits (40% Alc Vol) contains 1 standard drink. Consequently, a veteran drinking full strength beer would need to consume at least 11 375 ml cans per week to meet the consumption standard mandated by Factor 6(b).
The Respondent draws the Tribunal’s attention to the seeming inconsistent information the veteran provided about his alcohol consumption and refers to him as “an unreliable historian” – RS para 19 p. 5.
In the Alcohol Questionnaire of 25 November 2014 the veteran answered that he drank 6-8 cans of beer per week – Exhibit 1 T149 p. 556. As Question 4 specifically explained that a 10 oz (285 ml) glass of beer or one nip of spirits equated to one standard drink, it can be assumed that the 6-8 cans referred to by the veteran are 375 ml full strength beer cans.
In contradistinction, the veteran claimed in an Alcohol Questionnaire dated 28 February 2017 that he was drinking 30 plus cans of beer plus 26 to 30 nips of rum per week – Exhibit 1 T127 p. 499.
The difference between the answers is striking and the Respondent points out that the veteran attempted to explain away the difference by attributing the inconsistencies to the impact of the subarachnoid haemorrhage. The Respondent, however, submitted – RS para 20 p. 5:
“this is nothing more than an attempt by the Applicant to explain away what are obvious inconsistencies in the evidence.”
It is appropriate, in this context, to set out in detail the questions asked of the veteran at the Hearing by Mr Crethary and his responses. Mr Crethary drew the veteran’s attention to the seeming inconsistent answers he gave in the two Alcohol Questionnaires as to how much alcohol he consumed and then posed the following Questions – Tr. 3 June 2019 pp. 17-18:
“Can you explain the difference, please, between what you’ve written there and what was contained in the alcohol questionnaire at T-149?
DEPUTY PRESIDENT: I’d like to just draw Mr Trappett’s attention to that paragraph…
MR CRETHARY: Sorry, the final paragraph on the document T-117, you can see there it says: ‘During my service in the Navy?’ --- Yes.
‘The boys consumed a lot of alcohol’ and you go to the second sentence, ‘I’ve always drunk beer or rum, at least 30 plus cans per week.’ So, for the purpose of this hearing, is it 30 plus cans per week or is it six to eight cans a week?...
WITNESS: When I first joined the Navy, the first time I started drinking and everything, it may have only been six to eight cans, but as I went through – when I filled this form out, I just took it over the whole period that I was drinking and everything. I slowly built up drinking and that, but when I first started, I may have only been – that’s what I thought the question was about.”

Mr Crethary then drew the veteran’s attention to the 2017 Alcohol Questionnaire and asked the veteran to explain the widely divergent estimates of the amount of alcohol consumed. The veteran’s response was as follows – Tr. 3 June 2019 p. 19:
“That was just after the brain bleed. I’ve lost a little bit of memory, but that there – maybe I just put down the wrong numbers. The other one, there it says I drank 30 cans of beer per week, and that would be closer to the mark…
So, you say it’s more like the 30 cans than the six to eight? --- It’s more like the 30 cans per week, plus rum, than the other one. As I said, whether – I had just come out of hospital not long before that.”
The Respondent also highlighted the references in Dr Small’s Medical Report – Alcohol Consumption Subarachnoid Haemorrhage wherein he reported that he veteran had no history of alcohol abuse or dependence – Exhibit 1 T140 p. 521. The Respondent drew the Tribunal’s attention to following answers the veteran gave to questions posed by Mr Crethary at the Hearing – Tr. 3 June 2019 pp. 19-20:
“All right. While you have got those two documents there, go to T-140, please, page 521. This is a document that’s prepared by Dr Travis Small. Just for the record, your relationship with Dr Small? ---Yes.
Is he your general practitioner? --- He is my general practitioner, yes.
Okay, were you aware that he completed this form to submit to the Department? --- Yes, I think I was. Yes.
All right. Do you recall sitting with Dr Small, and him asking you questions about this, or are you aware how this document was completed?
DEPUTY PRESIDENT: If you can’t recall, you can say that, Mr Trappett? --- I’m pretty sure I was present, yes.
MR CRETHARY: All right. If you go to question two of the first page of that document, you will see a question there: ‘Is there a history of alcohol abuse or dependence?’ and you picked ‘No’ Do you recall ever telling Dr Small that you had no history of alcohol abuse or – – – ?---No, No I don’t.
Can you assist in any way as to why he may have ticked ‘No’, and indeed the following questions as well, so question three and question four? --- No, I’ve got no - - -.”
After setting out Dr Small’s report and the veteran’s testimony at the Hearing, the Respondent made the following submission – RS para 23 p. 5:
“The Respondent submits that the only evidence supportive of the Applicant’s consumption is that provided by himself and his wife. In that sense, there are no contemporaneous records corroborating consumption and/or consumption of alcohol at the required level necessary to meet the requirements of the SoP.”
Turning first to Dr Small’s report, Mr Harding correctly pointed out (AOSR para 7) that there is nothing in the SoP which requires a history of alcohol abuse or dependence, or that alcohol consumption be part of a psychiatric condition or a veteran self-medicates. The SoP focuses on the quantity of alcohol consumption, and is not focused on the issues raised in the Alcohol Questionnaire.
Mr Harding also submitted (AOSR para 5) that the Questionnaire is poorly drafted and does not accord with the requirements of the SoP.
The Tribunal agrees with the submissions of Mr Harding. The Alcohol Questionnaire poses questions which are not particularly helpful and, in part, are irrelevant. The issue before the Tribunal is not whether the veteran was alcohol dependent, was abusing alcohol, had a psychiatric condition or was self-medicating. The sole issue which Factor 6(b) focuses attention on is the quantity of alcohol consumed.
Dr Small’s response to the question whether the veteran has a history of alcohol abuse or dependence is not determinative of the issue of whether the veteran was drinking 15 standard drinks or more per week. Indeed, it would be passing strange for a Doctor, or anybody else, to claim that a person had alcohol dependence or was abusing alcohol on the basis of having, on average, a little over two standard drinks each day. If that were the case then a large proportion of the Australian adult population would be labelled as being dependent on alcohol.
As Dr Small was not called to give evidence, this matter cannot be taken further. However, the Tribunal does not accept Mr Crethary’s submission that Dr Small’s negative answer to Question 2 of the Alcohol Questionnaire is supportive of the proposition that the veteran was not drinking at least 15 standard drinks per week at the time the Questionnaire was completed.
Mr Harding also drew the Tribunal’s attention to the contemporaneous medical reports both during his treatment at Princess Alexandra Hospital and after his discharge. The evidence before the Tribunal supports the proposition that the veteran’s cognitive skills were impaired by the subarachnoid haemorrhage, and he suffered from some time from cognitive and language issues.
Although the Tribunal accepts that the veteran was severely impacted by his condition, and was suffering a range of cognitive problems for some time thereafter, the inability of the veteran to provide an adequate explanation for the widely divergent answers he gave in the Alcohol Questionnaires undercuts Mr Harding’s submissions.
If that were the only evidence before the Tribunal, then there would be considerable force in the submissions advanced by Mr Crethary. However, that is not the case. The Tribunal had benefit of receiving both oral and written evidence from the veteran’s wife.
Ms Trappett first met the veteran when he was only 18 years old and had just returned from serving in Vietnam. The veteran and Ms Trappett married on 28 December 1971 and have lived together since that time – Exhibit 6 paras 2-3. In short, Ms Trappett is in a unique position to provide information on the veteran’s drinking habits over a 50 year period.
The Tribunal had the advantage of being able to observe Ms Trappett give evidence, and was impressed by her testimony. She presented as an honest and straightforward individual who answered the questions posed directly and without equivocation or qualification. In short, she presented as a witness of credit.
Ms Trappett gave the following testimony – Tr. 3 June 2019 p. 22:
“Yes. Now, I want you to focus on that period when you first met Ian? – Right.
And in those very early years. You’ve described his level of alcohol consumption in your statement at paragraph four. Can you explain what observations you made which led you to make the statement, if you read at paragraph four of your statement? The first sentence? --- Well, when I first met Ian, yes, he was – and still does – he was drinking very heavily. I had been around – within the family, I owned a hotel – but I had never, ever seen the amount of alcohol consumed for someone young. Like, in that group of guys that Ian was with on the ship.
So you grew up in a hotel yourself, did you? --- No, not in a hotel, but it was a hotel within the family…
Okay, and you had spent much time at the hotel?---Yes, I did.
So, you had seen what people did at hotels?---Yes, I did.
Okay, and your observations of Ian were that he was - - -?---Yes, I was shocked that someone at such an age could drink so much. I had never seen young ones at that age drink so much.”
In her Statement, Ms Trappett discusses at length the veteran’s drinking habits. Suffice it to say, she describes the veteran drinking to excess from the time she first met him. Importantly, she observes that the veteran was drinking to excess not only during his service years but also “after his discharge” – Exhibit 6 para 14. It is also clear from her Statement, that Ms Trappett personally observed the veteran drinking far in excess of 15 standard drinks per week.
The Tribunal has no reason to doubt the veracity of Ms Trappett’s evidence. She paints a picture of the veteran returning from his tour of service in Vietnam as a seasoned drinker, and a person who from that time onwards drank consistently and heavily. Ms Trappett came from a family who operated hotels and she grew up in an atmosphere of observing the drinking habits of a diverse range of persons. The fact that she observed that the veteran and his RAN mates were drinking at levels she had not previously observed speaks volumes about the extent of the veteran’s drinking habits.
In these circumstances, the Tribunal is satisfied that the evidence points to the veteran consuming in excess of 150 grams of alcohol per week for a continuous period of six months before the clinical onset of his subarachnoid haemorrhage.
The remaining issue at Step 3 is to determine if the raised facts points the veteran’s alcohol consumption being causally related to his operational service.
A factor causing, or contributing to, inter alia, a disease or death is related to service rendered by a veteran if one or more of the circumstances outlined in s 196B(14) are satisfied. In this matter the relevant circumstance is s 196B(14)(b):
“it arose out of, or was attributable to, that service”.
In Repatriation Commission v Law (1981) 147 CLR 635, the High Court upheld a decision of the Full Court of the Federal Court. Aickin J paraphrased with approval the following observations of the Full Court on the concepts of “arising out of” and “attributable to” (at 647-648):
“They said that the words ‘arising out of’ in that paragraph require a consequential relationship of the incapacity or death with the service out of which it is said to arise. They also said that the expression ‘arising out of’ or ‘arisen out of’ is satisfied by some less proximate causal relationship than the expression ‘caused by’ or ‘resulting from’ and that it was not useful ‘to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’…’. They also took the view that the expression ‘attributable to’ involved some element of causation but that it was sufficient if the cause was one of a number of causes provided that it was a contributing cause in the sense of contributing to the death.”
One Federal Court authority of much assistance in sensibly applying this circumstance is Repatriation Commission v Tuite (1993) 39 FCR 540 (Tuite). This much quoted case involved the issue of whether the veteran’s smoking habit, and consequent development of emphysema and gastric ulcer, arose out of, or was attributable to, his war-service. Davies J made the following observations (at 541-542):
“The words of s 9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury. That is, eligible war service must contribute in a causal way to the injury or disease: see Repatriation Commission v Law (1980) 47 FLR 57 at 67-68.
Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under s 9(1)(d) and 9(2), 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 of Pensions [1948] KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] KB 250 at 256. An illustration of the point may be found in Goward v Commonwealth (1957) 97 CLR 355 where Dixon CJ Webb and Kitto JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said (at 364):
‘It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.’…
If the circumstances of the 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 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.”
Burchett and Einfeld JJ reached the same conclusion and made the following observations (544-545):
“The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was ‘something within the applicant’s military service which has caused him to start smoking’. It accepted his evidence that he had not smoked before, ‘and that it was the circumstances whilst he was in camp that caused him to start to smoke’. The Tribunal added: ‘Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military’. The Tribunal pointed out that the respondent ‘was in a milieu totally different to that which he had experienced before his call-up’. (It appears that he was actually a volunteer).
We are unable to find anything suggestive of error in this reasoning. It was for the Tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross-examination. Apart from the matters specifically mentioned in the Tribunal’s reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction…”
A further decision of relevance to this matter is Repatriation Commission v Hawkins (1993) 45 FCR 205. The veteran in that matter was a Chief Petty Officer on HMAS Sydney in 1969 when it was engaged in sailing to and from Vietnam. In the course of a voyage to Vietnam Mr Hawkins started smoking because of his apprehension about forthcoming service in Vung Tau Harbour. Unfortunately, Mr Hawkins subsequently developed ischaemic heart disease and claimed a pension. His claim was refused on the basis that his “operational service” was limited to his one day within Vietnamese waters, and, accordingly, it could not be found that his disease “arose out of or was attributable” to his operational service.
The Full Federal Court considered s 6(5), as it then was, and held that it operated to fix the period of the veteran’s operational service from the day he departed from his last Australian port of call to the day he arrived back at the first Australian port of call on returning from that service. Now reference can be made to s 6E.
Apart from this finding, and importantly for this matter, the Court held that in determining if a disease is causally related to an event, a demonstrated relationship with matters inseparably bound up with event, being inevitable concomitants of it, will in general suffice.
The Court (Burchett, Einfeld and Beazley JJ) made the following observations (207-208):
“Where the question is whether a disease is causally related to an event, a demonstrated relationship with matters inseparably bound up with that event, being inevitable concomitants of it, will in general suffice: cf Repatriation Commission v Tuite (1993) 39 FCR 540 at 545. Thus, the negligence which causes an accident may also cause the nervous shock suffered by a mother upon being told that her daughter has been killed in the accident: Sate Rail Authority of New South Wales v Sharp [1981] 1 NSWLR 240…Similarly, it seem to us the possibility that the seaman might have developed the habit of smoking as a result of being ordered to Vietnam without ever arriving there (as for instance if the order had been countermanded during the voyage) is not relevant. The fact is he did go there, and he could not go without first receiving the order. The order, with its associated preparation and apprehension, formed an inseparable part of the total series of events, centred upon the presence of the ship in Vung Tau, as a result of which the habit of smoking was contracted…No one doubts that the terrors of combat would be war-caused; it would be a bizarre conclusion that attributability should depend on whether the sufferer is looking back or looking forward at the very same occasion. Counsel for the respondent illustrated the point neatly when he suggested that the hiring of a car to take a bride to the church is causally related to her wedding, although it was arranged in anticipation, and the wedding might at any time have been called off.”
Accordingly, the Full Court found that the order to go to Vietnam, formed an inseparable part of a series of events as a result of which the veteran’s smoking habit was contracted. Mr Harding submitted that it was open to the Tribunal to consider the veteran’s period of pre-deployment at Garden Island, because it was inseparably bound up with his period of operational service – CS para 41.
Mr Harding’s submission is too broad in that while the Full Court held that it was open to consider matters from the time that the order to go to Vietnam was given, it did not envisage that a tribunal of fact would engage in an inquiry over an unlimited period of time prior to actual deployment. However, Mr Harding is correct to highlight that the Tribunal is entitled to consider the impact of known impending operational service on the health and habits of a veteran.
The veteran’s Statement of 18 June 2018 (Exhibit 3) provides detailed information about his experiences of life in the RAN both when he first enlisted and whilst rendering operational service in Vietnam. The following salient information appears in the Statement:
·the veteran was only 17 years and 2 months old when he enlisted (para 5);
·prior to enlisting the veteran did not drink alcohol (para 12);
·the veteran was posted to HMAS Cerberus for three months (para 5);
·the veteran first started drinking whilst undergoing recruit training at HMAS Cerberus (para 12);
·the veteran’s alcohol consumption at this stage was limited to civilian hotels in Melbourne where he only drank lightly, and he had not developed a drinking habit (para 13);
·after three months he was posted to HMAS Vendetta at Garden Island in Sydney (paras 5, 14);
·during the workup phase before deployment the veteran lived on the ship for 2 ½ months which he described as a steep learning curve in, at times, an unfriendly environment (para 14);
·HMAS Vendetta was involved in workups in preparation for deployment to South Vietnam (para 6);
·the veteran had never been on a warship (para 6);
·there was strong peer pressure to drink to socialise together which involved drinking each weekend (para 16);
·the veteran was still only 17 years old when HMAS Vendetta sailed for Vietnam (para 6);
·at the time the veteran departed for Vietnam his drinking was “quite light” to what it later became (para 16);
·the veteran was allocated to the Gun Bay and required to load cordites on to a lift apparatus which took them to gun turret (para 8);
·the veteran received no formal training for these duties and had no previous gunnery experience (para 8);
·he initially spent 33 days straight in the gun line and subsequently for long periods during his six months service in Vietnamese waters (para 9);
·after a bombardment, reports would be received, usually from spotter aircraft, of the damage and destruction caused to people and property (para 17);
·no drinking was allowed on the gun line, but recreational leave was usually taken at Subic Bay in the Philippines where there were numerous recreational activities and bars (para 19);
·the veteran drank heavily during rest and recreation periods as it gave him “a strong sense of relief from the trauma of the bombardments whilst on the gun line and the stress of life on-board a warship continuously in a war zone. I was deeply affected by my wartime experiences on the gun line on HMAS Vendetta both at the time and long afterwards. I found that it helped to drink alcohol to dull the memory of those traumatic experiences” (para 20);
·on his return to Australia the veteran continued to drink alcohol heavily to ease the stressful memories of service in Vietnam (para 23);
·by the time of his return to Australia, the veteran was 18 years of age and allowed to access the wet messes on base (para 23);
·the veteran continued to socialise with his circle of RAN comrades and each weekend would “drink and party hard” (para 24);
·by the time the veteran returned to Australia he was drinking more regularly and heavily than before his Vietnamese tour of duty (para 26);
·after getting married the veteran had a pattern of moderate drinking at home and heavy drinking at sea (para 34);
·after being discharged from the RAN, the veteran had a number of jobs, including in remote locations and Papua New Guinea, and throughout this time he was drinking heavily (paras 43-60).

The veteran’s account of his drinking habits on his return to Australia from Vietnam accords with the recollections of his wife, as outlined in her Statement of 18 June 2018 (Exhibit 6). Ms Trappett provided the following information:
·Ms Trappett met the veteran in 1970 shortly after his return from Vietnam when he was only 18 years of age (para 3);
·the veteran was already drinking heavily, and at a 21^st birthday party they both attended, he was founded under a house heavily intoxicated drinking Drambuie (para 4);
·she was shocked by the amount of alcohol the veteran and his comrades consumed (para 5);
·drinking was a constant activity in all of her and the veteran’s recreation activities (para 6);
·the veteran confided in his wife that his service in Vietnam “wasn’t good”, but he didn’t want to talk about his service and she formed the view that it had been a traumatic experience for him (para 7);
·she and the veteran went on a veterans’ organised trip to Vietnam. The veteran became emotional when discussing his war-time experiences and became quiet afterwards. During the trip he was reserved and she believed that “the trip did affect him quite deeply. He would never admit it” (paras 9, 12).
The evidence before the Tribunal discloses that the veteran was a very young (17) man when he first enlisted. His life time experiences amounted to attending primary and secondary school and working, for a short time, in a pastry shop baking and selling pies – Exhibit 3 para 4.
Whilst the veteran’s father and two of his brothers were serving in the RAN when he first enlisted (Exhibit 3 paras 3, 5), the veteran was only a very young man without very much life experience and placed “in a milieu totally different to that which he had experienced before his enlistment” – Tuite at 544.
This can be contrasted with Read and Military Rehabilitation and Compensation Commission [2015] AATA 930 where the veteran in question had been out of high school for five years, had been employed throughout that time and had travelling from Western Australia to Queensland for work. Senior Member Walsh inferred that Mr Read was an independent and mature 20 year old by the time he was conscripted and was, therefore, less impressionable and susceptible to commence (in that matter) smoking as a result of peer pressure.
This matter is more akin to Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429; 158 ALD 64. In that matter the veteran was only 15 years of age when he enlisted, was moved away from his family, was exposed to heavy smoking, was subjected to peer pressure to smoke, had not smoked prior to enlisting and continued to smoke heavily both during his 23 years of service and thereafter.
In this matter the veteran did not drink alcohol before he enlisted and was exposed to a culture of drinking thereafter. There was peer pressure to socialise and form bonds with his close RAN comrades.
Prior to leaving for Vietnam, the veteran was an inexperienced and impressionable 17 year old who did not have a history of heavy drinking. The veteran’s service in Vietnam left a lasting impact on him. According to Ms Trappett, even decades after the veteran’s Vietnamese service, he was still affected by it. In her opinion, the Vietnamese tour of duty had a traumatic impact on him.
What is tolerably clear from the evidence is that prior to his operational service the veteran was a light drinker, but by the time he returned to Australia he had become a heavy drinker. Whether this change was caused by the trauma of witnessing ongoing bombardment of the Vietnamese coastline with consequent mayhem to the civilian population or whether it was caused by peer pressure or for some other reason, or a combination of all, is not certain but what it is tolerably clear that there is a causal link between the veteran’s operational service and his heavy drinking habits.
This is not an instance where there is purely a temporal connection. The evidence discloses that the veteran was a changed man by the time he returned to Australia from Vietnam. Ms Trappett’s evidence is particularly telling as it discloses that by the time the veteran returned to Australia at only 18 years of age he was a hardened drinker who was regularly engaging in alcohol abuse.
The evidence suggests that the veteran began to use alcohol as a means of stress relief and led to the contraction of an alcohol consumption habit that continued throughout the years of his RAN service and thereafter.
The Tribunal is therefore satisfied that the evidence points to the veteran’s alcohol consumption arising out of, or being attributable to, his operational service.
Fourth Step
Having dealt with the requirements of s 120(3), the Tribunal is now required to consider s 120(1). This subsection requires that the Commission shall determine that injury, disease or death was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
The task required of the Tribunal at this stage was helpfully explained by Mason CJ, Deane and McHugh JJ in Bushell (at 416) as follows:
“The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, ‘beyond reasonable doubt, that there is no sufficient ground for making the determination’ even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that he factual foundation upon which the hypothesis can operate does not exist.”
In order that the veteran’s claim be rejected at this stage of the inquiry, the tribunal of fact must find that the facts necessary to support the hypothesis are disproved beyond reasonable doubt or that a fact contrary to the raised hypothesis, and which is fatal to it, has been proved beyond reasonable doubt – see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570-571.
The term “beyond reasonable doubt” carries with it the criminal law standard of proof. The policy rationale for this unusual state of affairs was explained by Murphy J in Repatriation Commission v Law (1981) 147 CLR 635 at 638-639 as follows:
“In ancient and modern civilizations the treatment of former soldiers and sailors has been an important social issue. Historically the tendency has been to discard them and ignore the physical, social or economic damage to them by military service. The Australian solution to the problem of ensuring that the costs of war-related loses were borne by society rather than fall on the injured persons or their dependents was the adoption (along with other measures) of the ‘onus of proof’ section in war veterans legislation which requires the Commonwealth or its agency to disprove a claim rather than to require the claimant to prove it. It has been obvious that this remedial section would result and has resulted in many claims being allowed which in truth were not well-founded. This was the price of ensuring that no valid claim was rejected because of insufficiency of proof.”
It flows from these explanations that it is at this stage of the inquiry that findings of fact are made by the Commission, or, on review, by the Board, and, finally, the Tribunal.
Mr Harding submitted (CS para 46) that no fact necessary to support the hypothesis had been disproved beyond reasonable doubt. It was also submitted that there was no other fact, which is inconsistent with hypothesis, which has been proved beyond reasonable doubt, thus disproving the hypothesis.
The Tribunal finds that the veteran:
·enlisted in the RAN when he was 17 years of age;
·did not drink alcohol before he enlisted;
·began drinking alcohol after he enlisted;
·rendered operational service in Vietnam from 15 September 1969 to 11 April 1970;
·was allocated to the gunnery division;
·experienced numerous occasions when the ship’s guns were fired;
·drank far more heavily during and after his operational service;
·was traumatised by his operational service;
·continued to drink to excess after returning from Vietnam and after his discharge from the RAN.
The Tribunal agrees with Mr Harding’s submission and, accordingly, there are no grounds for a finding that either one or more of the facts necessary to support the veteran’s hypothesis have been disproved beyond reasonable doubt or that the truth of any material fact which is inconsistent with the hypothesis has been proved beyond a reasonable doubt.
ASSESSMENT
Both the veteran and the Respondent agreed that in the event that the Tribunal finds in favour of the veteran for either or both of the claimed conditions, that the appropriate course of action is to remit the matter to the Respondent for assessment of pension – see RS para 2 p. 2.
The Tribunal agrees that this is the appropriate course of action.
DECISION
The Tribunal:
(a)affirms the reviewable decision in relation to left shoulder osteoarthritis;
(b)sets aside the reviewable decision in relation to subarachnoid haemorrhage and in substitution finds that the veteran’s subarachnoid haemorrhage was war-caused; and
(c)remits the matter to the Respondent for assessment of pension in accordance with this determination.

I certify that the preceding 224 (two hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.....................................[SGD]...................................
Associate
Dated: 20 September 2019

Date of Hearing: 3 June 2019

Counsel for the Applicant: Mr Anthony Harding

Solicitors for the Applicant: Terence O'Connor Solicitors

Representative for the Respondent: Mr Peter Crethary

Moray & Agnew Lawyers

Date of Hearing:	3 June 2019
Counsel for the Applicant:	Mr Anthony Harding
Solicitors for the Applicant:	Terence O'Connor Solicitors
Representative for the Respondent:	Mr Peter Crethary
Moray & Agnew Lawyers