Walmsley, Christopher Lloyd v Repatriation Commission

[1997] FCA 703

FEDERAL COURT OF AUSTRALIA

VETERANS’ AFFAIRS - pension claimed for bowel cancer - drinking habit a likely component cause of disease - whether drinking habit attributable to war service - finding of fact by Administrative Appeals Tribunal - no error of law.

Veterans’ Entitlement Act 1986 s 9(1)(b) and (d)

Black v Repatriation Commission (1993) 29 ALD 693 considered
Re Gillman and Repatriation Commission (1993) 30 ALD 545 considered
Repatriation Commission v Tuite (1993) 39 FCR 540 applied

CHRISTOPHER LLOYD WALMSLEY v  REPATRIATION COMMISSION

NG 748 OF 1996

JUDGE:         WHITLAM
PLACE:         SYDNEY
DATE:           30 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 748 of 1996
)
GENERAL DIVISION	)

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	CHRISTOPHER LLOYD WALMSLEY Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	WHITLAM J
PLACE:	SYDNEY
DATED:	30 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 748 of 1996
)
GENERAL DIVISION	)

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	CHRISTOPHER LLOYD WALMSLEY Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	WHITLAM J
PLACE:	SYDNEY
DATED:	30 JULY 1997

REASONS FOR JUDGMENT

This is an appeal from the Administrative Appeals Tribunal (“the Tribunal”).  It concerns an application dealt with in the Veterans’ Appeals Division of the Tribunal constituted by two members, one of whom is a Deputy President.  The essential background to that application, which emerges from the “T” documents included in the appeal papers, may be briefly summarized.

The applicant, Christopher Lloyd Walmsley, was born on 24 May 1917 and served in the Australian Army during World War 2.  After he retired  from the workforce, Mr Walmsley lodged in 1977 a claim to have a back condition accepted as being related to his war service.  The claim was rejected.  In 1980 Mr Walmsley submitted further evidence in support of his claim, which was accordingly reconsidered but again rejected.

In January 1990 Mr Walmsley had a carcinoma of the rectum removed, and in June 1990 he lodged a claim to have his bowel cancer accepted as war-caused.  That claim was rejected by a delegate of the respondent on 9 December 1992.  The delegate apparently relied on the report of a departmental medical officer, Dr E.S. Lim, who attached to his report a statement dated January 1990 on the subject of adenocarcinoma of the colon and rectum.  That document stated (inter alia) that “a carefully compiled review of bowel cancer aetiology concluded that there is no evidence for any particular dietary factor, including beer/alcohol, in the causation of colorectal cancer”.  (However, it is not clear that at this stage Mr Walmsley had suggested any such factor contributed to his bowel cancer.)

In December 1993 Mr Walmsley underwent a further operation for a recurrence of the carcinoma.  On 18 April 1994 he lodged a fresh claim to have both his back condition and his bowel cancer accepted as war-caused.  The Department of Veterans’ Affairs requested Mr Walmsley complete a document described as an Alcohol Questionnaire, which he signed on 4 July 1994.  In that document Mr Walmsley stated that he started drinking alcohol during his service, that his drinking “intake” gradually increased during his service, that his drinking habit changed after his service because “I became an alcoholic”, and that he stopped drinking after his bowel cancer was diagnosed.  These answers were considered by a departmental medical officer who recorded his comments in a form dated 19 October 1994.  The medical officer remarked that Mr Walmsley’s statement that he had been an “alcoholic” was inconsistent with the history earlier taken by another departmental medical officer on 30 May 1977 that he has an “occasional beer”.  However, the medical officer did note the opinion expressed by Mr Walmsley’s general practitioner, in a report dated 9 August 1977, that he “drinks if worried”.  The respondent’s delegate rejected the claim for both conditions.  In a statement of reasons dated 29 November 1994, the delegate said: “Carcinoma of the rectum is due to unknown causes.  There is no evidence of pathological substance abuse involving alcohol.”  The Veterans’ Review Board affirmed the delegate’s decision.  In its reasons forwarded to Mr Walmsley on 28 June 1995, the Board stated in relation to the carcinoma of the rectum: “No medical evidence has been supplied supporting a causal connection with eligible service.”

This led to the application, the disposition of which is the subject of the present appeal, being lodged with the Tribunal on 17 June 1995.  In his application Mr Walmsley said: “I am seeking a pension on the grounds of back injury suffered during service.”  He concluded: “The above occurrence is what I am seeking a pension for.  Nothing else.”

The Tribunal sat at Lismore to hear the application.  Mr Walmsley lives nearby in Alstonville.  At the commencement of the hearing the respondent’s representative conceded that Mr Walmsley’s back condition was war-caused.  The Tribunal accordingly did not deal at the hearing with that part of the claim.  However, notwithstanding what he had said in his application to the Tribunal, Mr Walmsley pressed to have his bowel cancer also accepted as war-caused.

The appeal papers do not include a transcript of the hearing.  However, Mr Walmsley gave evidence, and various documents tendered by the parties were received in evidence by the Tribunal.  The key document relied on by Mr Walmsley was a medical report dated 15 March 1996 prepared for his solicitors by Gabriel A Kune, a retired professor of surgery with specific expertise in cancer epidemiology.  This evidence is also central to Mr Walmsley’s grounds of appeal in the present case.

It is not clear what documents had been made available to Professor Kune by Mr Walmsley’s solicitors.  They did include a statement from Mr Walmsley dated 29 February 1996, which was also received in evidence before the Tribunal.  The medical history recorded by Professor Kune was incomplete.  He appears to have had a report from the treating surgeon in 1992.  However, the professor had not noted the recurrence of the tumour in 1993, the further operation, the histological evidence of the cancer’s extension into the muscular plaque, and a subsequent course of radiotherapy. 

Professor Kune first gave a brief description of the general aetiology of rectal cancer.  He then discussed “the specific aetiology in Mr Walmsley”.  Under this heading he stated: “it appears that he was a heavy and regular consumer of alcohol up to 1989 or 1992, and there is a large volume of evidence which implicates alcohol consumption with the aetiology of rectal cancer”.  The professor then listed a number of studies which, he said, provided “specific evidence for a positive association between alcohol/beer consumption and rectal cancer”. Having summarized that material, he said: “the current evidence therefore indicates that alcohol/beer consumers are at an increased risk of developing rectal cancer, and that this association is likely to be causal”.

Next, Professor Kune dealt with the topic of the extent and duration of alcohol consumption. He referred to three studies indicating that “a daily consumption of three or more alcoholic drinks is associated with elevated risks of both rectal and colon cancer”.  He said, whilst precise data on the duration of regular alcohol consumption which would be associated with an elevated risk for colorectal cancer was not available, an extensive review in 1992 had noted that only those studies which measured alcohol consumption for 20 years or longer showed risk elevations.

Professor Kune concluded:

“Based on the information made available by Mr. Walmsley regarding his alcohol habit, and based on the currently available scientific evidence, in my opinion it is very likely that his alcohol consumption was a component cause of his rectal cancer, and that his rectal cancer was service related, provided it can be shown that his alcohol consumption was in some way service related also.”

It will be seen, therefore, that Mr Walmsley’s solicitors had taken steps to plug the evidentiary gap noted by the Veterans’ Review Board.  The documentary tender by the respondent is, at first glance, a little puzzling.  It consisted of Mr Walmsley’s statement dated 29 February 1996 that had been furnished to Professor Kune, a copy of the general practitioner’s report dated 9 August 1977 that had been earlier noted by the departmental medical officer, and an extract from the commentary in a medical textbook on the subject of alcohol dependence. 

The Tribunal decided that Mr Walmsley’s carcinoma of the rectum was not war-caused.  This decision was given in Brisbane on 12 August 1996 one week after the hearing.  The Tribunal’s reasons are quite brief.

In paragraph 10 of its reasons the Tribunal referred to the documentary evidence before it and said of Professor Kune’s report “effectively it linked excessive alcohol consumption with the causation of rectal cancer”.  The reasons continued:

“12.     The case for the applicant is as follows, and is based upon his evidence. 

(a)When he joined the Army, he left a close family environment and, in particular, a very close relationship with his mother; he had not in any substantial way been away from home before;

(b)      As a result of that environment, he was a teetotaller;

(c)Under peer pressure, especially coming from two very good friends, (cousins named Fullar (Skeeter Fullar, the older, “a good friend, a bloke I looked up to” and Butch Fullar), Mr Walmsley abandoned family values, gave up his Cherry Cheer and after starting on shandies, took to drinking beer; taunts such as “Come and have a few drinks like a man” rained had [sic] upon him as a result of his being the only one of 12 in his hut who did not drink.  Skeeter Fuller said “Why not have a shandy instead of drinking lolly water”.

(d)Eventually, whilst still in the Army in the daily presence of the Fullers and others, he found himself drinking 4 or 5 beers every day.  They drank schooners which were then called mugs.

(e)       This led to heavy alcohol consumption later in life.

13       However, notwithstanding that Mr Walmsley said of himself that “I ended up an alcoholic”, there is no evidence that he did so.  There is certainly no basis for a finding on the balance of probabilities (the applicable standard of proof, there being no operational service factor in the eligible service rendered by Mr Walmsley) to link any ingestion of alcohol later in his life with the circumstances of his eight month’s [sic] service in the Australian Army.

14.      Mr Walmsley’s evidence traced the history of his life post-service.  It covered sad events such as the loss of his mother who was gored to death by a bull at, it would seem, a time not long after his Army service.  His evidence covered his work history and relevant aspects of the history of his marriage.

15.      On all of this evidence, we find:

(a)As a result of peer pressure during his few short months in the Australian Army, Mr Walmsley abandoned the dogma of strict discipline during his boyhood and teen years and in a somewhat halting manner experimented with beer consumption.

(b)That as a result of severe spinal injuries in the course of his eligible service, he was discharged from the Army eight months after entry.

(c)That on his evidence, many years later he ended up with a substantial and probably habitual daily intake of alcohol.

(d)That the ingestion of alcohol cannot be found on the balance of probabilities to arise out of or be attributable to the circumstances of his particular service.

16.      Mr Fitzgerald referred me [sic] to findings of the Tribunal in earlier cases - Black v Repatriation Commission (1993) 29 ALD 693 at 697 and Gillman and Repatriation Commission (1993) 3 ALD 545 at 547.  We agree with the legal ratio expressed in those decisions but can only say that on the facts of the matter it cannot safely be found that “but for” Mr Walmsley’s Army service he would not have started drinking.  Such a finding would be conjecture to the point of guess-work.”

Counsel for Mr Walmsley submits that the Tribunal fell into error by, in effect, requiring his client to be addicted to alcohol.  This is said to be implicit in what the Tribunal said in paragraph 13 of its reasons.  He submits that Professor Kune’s evidence of a causal connexion between “excessive consumption of alcohol” and the development of rectal cancer did not require Mr Walmsley to be an alcoholic.  (In fact, Professor Kune’s report did not suggest an aetiologic association between “excessive” alcohol consumption and rectal cancer.  He mentioned elevated risks associated with a daily consumption of three or more alcoholic drinks over a period of twenty years or longer.  He did not label this consumption excessive.) 

The immediate issue before the Tribunal in the present case was whether Mr Walmsley’s drinking habit, what it called his “ingestion of alcohol later in his life”, arose out of or was attributable to his war service.  This approach accords with that approved by the Full Court of this Court in Repatriation Commission v Tuite (1993) 39 FCR 540 and adopted by the Tribunal in Re Gillman and Repatriation Commission (1993) 30 ALD 545. This question was, as Tuite emphasizes, one of fact for the Tribunal. 

Notwithstanding the apparently irrelevant tender of certain material on alcohol dependence by the respondent, there is nothing to indicate that the Tribunal was distracted from its task.  The observation in the first sentence of paragraph 13 of its reasons may have many possible explanations.  It may be no more than a polite and reassuring comment on the assessment offered about himself by Mr Walmsley in his oral testimony before the Tribunal.  It does not matter.  The rest of that paragraph, read with paragraphs 15 and 16, makes it clear that the Tribunal considered whether Mr Walmsley’s drinking habit, as a likely component cause of his bowel cancer, was war-caused within the meaning of s 9(1)(b) or (d) of the Veterans’ Entitlements Act 1986 (“the Act”), not whether he was an alcoholic.

Nor, contrary to the suggestion in the grounds of appeal faintly pressed by counsel, does the decision in Black v Repatriation Commission (1993) 29 ALD 693 dictate the result in this case. In Black the evidence also included a report by Professor Kune about the statistically significant association between alcohol consumption and the subsequent development of cancer of the rectum. This evidence was one of the facts that Burchett J said raised an hypothesis of a sufficient association between the war service of the veteran in that case and his death from metastatic carcinoma of the rectum by virtue of the circumstances of his drinking habit and of his death. But that case was concerned with s 120(3) of the Act. Burchett J said (at 700):

“The question is not whether there was evidence upon which it could “find”, as a fact, that the consumption of alcohol was attributable to war service, but whether there existed a reasonable hypothesis that this was so.”

His Honour’s subsequent reference to the Tribunal ignoring the “whole matter of continuity” must be read in that context, together with his later criticism of the Tribunal’s “bifurcation of the alcoholic consumption for the purposes of the hypothesis”.   (Emphasis supplied.)

The appeal will be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:             30 July 1997

Counsel for the applicant:	J.D. Fitzgerald
Solicitors for the applicant:	Vardanega Roberts
Counsel for the respondent:	R.M. Henderson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	22 July 1997
Date of judgment:	30 July 1997