Walker and Comcare - [2001] AATA 285

DECISION AND REASONS FOR DECISION [2001] AATA 285

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/28

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ANTHONY OLIVER FRANK WALKER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Deputy President S P Estcourt Q.C.,

Date9 April 2001
PlaceHobart

Decision      The decision under review is affirmed.
  ..............................................
  Deputy President
CATCHWORDS
Compensation – incapacity for work – substance abuse – whether employment by Commonwealth a contributing factor to contraction – male former sailor – developing alcoholism during service.
Safety, Rehabilitation and Compensation Act 1988.

REASONS FOR DECISION

9 April 2001 Deputy President S P Estcourt Q.C.,

This is an application to review a decision of the Department of Defence dated 2 November 1998 disallowing a claim by the applicant for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of substance abuse suffered by the applicant.
Mr. Walker was born on 6 January 1941 and he jointed the Royal Australian Navy at the age of 17 years on 23 May 1958. He reached the rank of Chief Petty Officer and he served for 20 years, being discharged on 23 March 1978.
Mr. Walker rendered "defence service" as defined in Part IV of the Veterans' Entitlements Act 1986 ("the Veterans Act") between 7 December 1972 and 23 May 1978 and rendered "war service" between 25 January 1968 and 5 February 1968.
On 16 August 1996 this Tribunal affirmed a decision made by the Repatriation Commission dated 27 September 1994 rejecting a claim by the applicant that substance abuse in the form of alcoholism was either "war-caused" or "defence caused" within the meaning of either s.68 or s.70 of the Veterans' Act.
On 2 November 1998 the respondent affirmed its earlier decision made on 6 February 1998 rejecting a claim by the applicant for compensation under the Act on the ground that the evidence did not establish that his alcohol dependency was due to his naval service.
Mr. Walker gave evidence that prior to his enlistment in the Navy he had not consumed alcohol in any form. He said that he wasn't allowed to drink for the first three months, which were taken up with recruit training, but thereafter "we all started drinking".
As to the reasons for commencing to drink, Mr. Walker listed several. He said he was young and easily influenced by the older servicemen around him encouraging to have a drink, alcohol was freely available in the canteens and was cheap and consuming alcohol always seemed to be part of the navy's culture.
Mr. Walker stated in his proof of evidence that he did not consider himself a heavy drinker up to 1966, but he did consume alcohol nearly every day and drank up to 10 beers a day.   Mr. Walker then went on:
"Early in 1966 I underwent a Petty Officers' management course and in that year I was promoted to that rank.   The promotion involved additional duties, more responsibility and more stress.   I believe that I drank more due to those factors.   Whilst at sea the Chief Petty Officers and the Petty Officers had their own mess and were able to drink, within reason, whatever they wanted.
In February 1968 I was serving on HMAS Stuart whilst she was acting as escort to HMAS Sydney on the way to Vietnam.   On Entry into Vung Tau Harbour early in the morning land shelling could be seen and heard and lasted most of the day.   There were continuous boat patrols in the harbour searching for mines.   I found the experience very frightening.
On 3 June 1969 the HMAS Melbourne collided with the USS Frank E Evans in the South China Sea.   The HMAS Stuart was called on to search for survivors or bodies. Although it did not find any I was caused anxiety by the incident and apprehensive about discovering bodies.
I served on HMAS Yarra from 10 January 1972 to 15 January 1974.   During that period I was under stress due to my demanding duties and the fact that I was studying for and had to sit exams for promotion to Chief Petty Officer.   I increased my alcohol consumption due to those pressures.
In 1974 I was seconded to serve with the United States Navy in the United States.   My wife was very unhappy about going and the marriage started to deteriorate from arrival in America.   I reported for duty on 7 July 1994 to study the concept and procedures of ships' supply overhaul.
I found the service very stressful not only because the responsibility I had but because I did not understand US Naval language and had to re-learn many basic functions.   I drank more because of the stress of my job and the expectations of my superiors.   My work was made more stressful because of variations in computer language and different systems in the USA.
During the 3 years I was in the USA I was paid an entertainment allowance and was expected to entertain American sailors.   My wife did not drink and was very reluctant to entertain.   Mrs. Walker became very depressed because she did not like being in America.   The marriage deteriorated and despite counselling the relationship did not improve.   On return to Australia in 1977 my wife left me taking my daughter and leaving me with our 2 sons.   We were divorced on 25 September 1978.
Whilst in America I started to drink whisky.   There were times when my work was completed by lunchtime and I could go to the CPO's club and remain there drinking until evening."
In oral evidence in chief Mr. Walker was asked about when he was on the HMAS Yarra and was studying for Chief Petty Officer:
"Was that very difficult? ---- Yes, it is. Its difficult if you don't know the answers to the questions but its not just a matter of seniority, it's a matter of doing exams as well plus you have got a performance valuation done on you.
Do you find it stressful? ---- Yes, it is.
And did you drink any more at that time? ---- I would have thought so, yes leading up to that, yes.
Heading up to what? ---- When I was at Nirimba I drank a fair bit.
And why was that? ---- Well I was to home and I was heavily involved in the mess activity – I was secretary to the mess and that sort of thing."
He was then asked by his counsel about his time on HMAS Stuart in Vung Tau Harbour and the search for survivors from the collision between HMAS Melbourne and the USS Frank E Evans:
"Now, we are talking about 1969? --- yes.
What were your drinking habits by then? ---- I don't know.
Right. How often would you drink? ---- Truth be known I don't know. I can't remember. I don't know."
Next Mr. Walker was examined about his secondment to America:
"In 1974 were you seconded to serve with the United States navy? --- Yes, on exchange duties I went to America.
You were chief petty officer then? --- I was a chief petty officer.
And you were married with three children? ---- Yes.
What did your wife think about going to the United States? ---- She wasn't very keen. She was a bit worried about the drug problem and she didn't want to go.
And what were your duties? --- I was on loan to the American navy on the sub to supply operations assistance program.
And so what did you have to do? ---- We de-stored ships and restored them for the Americans.   I had to learn the American system first as to how they operated and what they did and that sort of thing and then after six weeks of that I started work for them as one of their team.
Was it a good job? ----It was a good job, yes.   Excellent Job.
Difficult? ---- Yes, it was because I had to learn all new routines and that sort of thing but it was a challenge and I enjoyed it and they were very good to us.
At that stage what were your drinking habits? ---- I was drinking pretty heavy.   They were waiting for me I think.   Being the only Australian in the area they realised our reputation for drinking and that sort of thing and that was it but I thought they were waiting for me.
So when did you drink – what time of the day? ---- Usually at lunch time and then after work and after work could go until 10 or 11 o'clock at night.
Were you paid an entertainment allowance by the navy? ---- yes, I was.
What was the purpose of that? ---- That was to entertain certain people over there and socialise.   That was paid from the embassy.
Did that involve any drinking? ---- Yes, I used to have to send them a list of who had been invited to the parties and that sort of thing.
And did you entertain people in your home? ---- Yes, that's where it was; that as where it was done.
And by that time what were you drinking? ---- Well, I was drinking beer to start off with but the beer over there wasn't very strong and I find I was going through about schools a day so I started drinking whisky in the finish.
And what sort of what sort of quantity of alcohol were you consuming on a daily basis while you were in America? ---- Lots because they used to have those little small cans.   They even had beer machines over there that you put your money in like a coke machine here and you get the beer out of the can."
Mr. Walker was cross-examined by counsel for the respondent:
"Now, If I looked at what the general things – and I think you were just talking about before when you started drinking for the first time – what I am saying to you is that it seems that your case is based on this. I drank from when I joined the navy, I had a few before I joined the navy as a kid but I drank from when I joined the navy. When incidents happened in the navy that caused me stress, that caused me to drink more. Now, is that what you are saying? --- No.
You are not? Well, what are you saying? --- I am just saying it become a gradual thing. It just built up over a period of time.
So it had nothing to do with the pressure ---? --- Yes, that had something to do with it, I am not saying that but I am not saying that was the whole crux of the matter." [My emphasis]
I have no difficulty in accepting Mr. Walker's evidence as truthful, although I find his assertion that he was paid an entertainment allowance during his 3 years secondment in the USA and was expected to entertain American sailors to be an exaggeration. In cross-examination Mr. Walker accepted that he was re-imbursed his expenses of entertaining people at barbecues at his home and that such functions only occurred two or three times a year.
Mr. Walker called a psychologist, Dr. Max Jacobs, however rather than assisting to establish Mr. Walker's service contributed to his alcoholism he gave evidence that Mr. Walker was predisposed to alcohol abuse because he was a perfectionist and he worried a lot. He said he had a certain vulnerability, so he became dependent. Dr. Jacobs stated:
"In another situation he might have done so as well, but equally had he not been in the navy, he might not have done so." [my emphasis]

In answer to a question by the Tribunal as to that passage in his evidence, Dr. Jacobs agreed that he couldn't say either way and that it would only be speculation to do so.

The respondent called Dr. Ian Sale, a psychiatrist who agreed with Dr. Jacobs that it was speculation to assert that Mr. Walker's service contributed to his substance abuse.
Dr. Sale said in his proof of evidence:
"Alcohol abuse and dependence, at least in men, is a common clinical problem. It would be uncommon for a single cause to be identified. There are known risk factors, e.g. genetic, ethnic, occupational, gender, presence of some mental or personality disorder. I can accept that service personnel would have a higher level of risk than average, and one could speculate that factors such as ready access to alcohol, and subcultural expectations re drinking behaviour are relevant. However, they are not causal or it would be found that they majority of service personnel are alcohol dependent."
To the extent that Dr. Sale's evidence differs from Dr. Jacobs claim in his proof of evidence that "[Mr Walker's] drinking is related to his navy service as it was while serving in the navy (as part of the navy lifestyle) that he learned to drink", I prefer Dr. Sale. Dr. Jacobs assertion is not clinically based and does nothing more than point to a temporal and not a causal connection between Mr. Walker's service and his substance abuse. Further, Dr. Jacobs statement in his proof of evidence was diluted by his statement in oral evidence that it was speculation as to whether Mr. Walker would not have been an alcohol abuser had he not been in the navy.
I also note as relevant to Mr. Walker's claim that his substance abuse commenced after 1966 as a result of a number of enumerated stressors, that Dr. Sale's unchallenged and uncontradicted evidence was that Mr. Walker's drinking first became pathological in 1962 to 1963.
The only other witness to give evidence was Dr. Tim Stewart, an occupational physician. Dr. Stewart stated that from the history he obtained from Mr. Walker he did not believe that there was any contraction of alcohol abuse due to the nature of Mr. Walker's employment in the navy. Dr. Stewart further noted in his proof of evidence:
"I cannot state that Mr. Walker's employment has contributed to his impairment in a direct sense. There may be an indirect association whereby, as in any employment, socialization involves the use of alcohol." [my emphasis]
The whole of the evidence falls far short of satisfying me that Mr. Walker's service in the navy was a factor which contributed to his alcohol abuse. The evidence establishes a temporal connection between Mr Walker's service and his contraction of substance abuse, (which is hardly surprising given that Mr. Walker served for 20 years from the young age of 17), however it falls well short of establishing a causal connection.
Whether, in view of the extended period of time involved, Mr. Walker's claim for compensation properly falls to be considered under the Commonwealth Employee's Compensation Act 1930, the Compensation (Commonwealth Government Employees) Act 1971 or the Safety, Rehabilitation and Compensation Act 1988, the evidence does not satisfy me of the existence of the necessary relationship required by any of those Acts, between the disease and the employment.
It follows that the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S P Estcourt Q.C.,
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  28 February 2001
Date of Decision  9 April 2001
Counsel for the Applicant        Mr R M Webster
Solicitor for the Applicant         Mr R M Webster
Counsel for the Respondent    Mr B Morgan
Solicitor for the Respondent    Australian Government Solicitors