Whelan and Repatriation Commission

[2006] AATA 558

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 558

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/650

VETERANS'     APPEALS      DIVISION

Re:        REGINALD LEONARD WHELAN

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             28 June 2006

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - malignant neoplasm of the colorectum - alcohol consumption - whether service‑caused

Veterans’ Entitlements Act 1986 ss 8(1)(b),120B, 120(4), 196

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Tuite (1993) 39 FCR 540

Roncevich v Repatriation Commission [2005] HCA 40

REASONS FOR DECISION

28 June 2006  G.D. Friedman, Senior Member

1.      Reginald Whelan was born on 1 December 1925 and served in the Royal Australian Air Force (RAAF) from 28 January 1944 to 1 August 1945, which was eligible service under the Veterans’ Entitlements Act 1986 (the Act).  In 2004 he was diagnosed with malignant neoplasm of the colorectum (bowel cancer) and claimed that this condition was caused by a high alcohol consumption which he developed during his service.  The respondent accepted the diagnosis but maintained that service was not the cause of his drinking.

2.      The issue before the Tribunal is whether Mr Whelan’s condition was service-caused as a result of alcohol consumption.

EVIDENCE

3.      Mr Whelan told the Tribunal that he undertook initial training at Somers, Victoria, and after four months was sent to Benalla for flying instruction.  His parents were strongly opposed to alcohol consumption, and he was a non-drinker before his enlistment in the RAAF at the age of 18 years.  He explained that at Benalla there was about one hour of flying each day, plus study commitments, and the RAAF did not permit student pilots to have access to alcohol at the base.  Mr Whelan said that there was plenty of spare time, and he began to drink beer with his colleagues at local hotels when not on duty, and sometimes he left the base without permission.  He said that before long he was drinking heavily, because there was little else to do.

4.      Mr Whelan said that he enjoyed flying the Tiger Moth aircraft and coped well emotionally.  He completed more than 120 hours, including flying solo, and was assessed as having attained the required standard as a student pilot.  However, he stated that he suffered from stress because of his poor relationship with a particular flying instructor (Flight Lieutenant Hood), whom he said humiliated and belittled him, sometimes in front of the other student pilots. 

5.      Mr Whelan stated that at the conclusion of his course, World War 2 was coming to an end, and he was not needed as a pilot.  He was transferred to Shepparton, where he was required to pick fruit.  He said that he increased his alcohol consumption because of the disappointment of not being permitted to fly and the boredom of having to pick fruit.  By the time of his discharge he was drinking at least 10 pots of beer per day.  He said that in 1947 he opened a sports store which was situated next to a hotel, and he drank regularly after work.  He said he reduced his alcohol consumption to 6 pots of beer per day in 1952 when a peptic ulcer was diagnosed, although after several months he resumed drinking at the previous level.

6.      Mr Whelan explained that from the mid 1970s he started drinking at home rather than in hotels, and was consuming about 6 bottles of beer per day, which he reduced to 2 bottles per day in about 1994.  He said that in 2003 he was diagnosed with heart disease, and underwent triple bypass surgery, after which he ceased drinking.  Mr Whelan stated that bowel cancer was diagnosed in 2004 and he underwent surgery soon afterwards.

7.      In a report dated 11 December 2005 (Exhibit R1) Associate Professor J. McCarthy, of the Australian Defence Force Academy, stated that during World War 2 the ration of beer for air force personnel below the rank of sergeant was 6 bottles per week.  He described the attitude of the RAAF to the consumption of alcohol as paternalistic, and that alcohol was in short supply in Australia throughout the war and particularly in 1944-45.  Professor McCarthy said that many student pilots were on duty for six days each week, and that off-duty hours were spent studying.  He concluded that if Mr Whelan was consuming large quantities of alcohol when not engaged in training, alcohol must have been available from licensed premises in towns near the bases at which he was stationed, and at Coburg (where his parents lived).

8.      In oral evidence Professor McCarthy agreed that Mr Whelan would have been extremely frustrated at not being able to use his pilot training, and at being sent to Shepparton to pick fruit instead of playing a meaningful role in the RAAF by flying aircraft.

9.      Entries in Mr Whelan’s RAAF logbook (Exhibit A2) show that Flight Lieutenant Hood was present on ten of Mr Whelan’s flights between 29 June 1944 and 11 November 1944.              

CONSIDERATION OF THE ISSUES

10.      Section 120(4) of the Act provides that the standard of proof to be applied is that of reasonable satisfaction.  As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act.  The Tribunal is also required to refer to s 196 of the Act which sets out the role of the Repatriation Medical Authority, the main function of which is to determine Statements of Principles (SoPs).  For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and the injury or disease.  This must be in accordance with generally accepted medical practice for the diagnosis and management of a medical condition.  

11.      The applicable SoP for Malignant Neoplasm of the Colorectum is N° 2 of 2004.  Factor 5(c) provides:

(c) drinking at least 500 kilograms of alcohol within a 25 year period within the 30 years immediately before the clinical onset of malignant neoplasm of the colorectum; or

Paragraph 8 of the SoP states:

“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;

12.      In reaching a decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing.  The Tribunal must form an opinion whether the contention raised by the applicant fits within, or is consistent with, a factor set out in the SoPs.  If the contention fails to fit within the template, the claim will fail. 

13.      There was no dispute between the parties, and the Tribunal accepts, that Mr Whelan suffers from malignant neoplasm of the colorectum.

IS THERE A LINK BETWEEN MR WHELAN’S SERVICE AND MALIGNANT NEOPLASM OF THE COLORECTUM?

14.      In respect of the relationship between his alcohol consumption and service, the Tribunal accepts that Mr Whelan was a non-drinker at the time of his enlistment in the RAAF.

15.      Although there are some inconsistencies in the histories given by Mr Whelan, and there may have been a general shortage of beer supplies towards the end of World War 2, the Tribunal accepts his evidence that his alcohol consumption has been heavy and has varied over time.  The level of his consumption satisfies factor 5(c) of SoP N° 2 of 2004.  Therefore, the Tribunal is reasonably satisfied that there is a temporal connection between Mr Whelan’s drinking and his service.

16.      In respect of any causal connection, the Tribunal notes that in Repatriation Commission v Law (1980) 31 ALR 140 the Federal Court of Australia held, in interpreting the words attributable to in s 8(1)(b) of the Act:

It seems clear that the expression “attributable to” in each case involves an element of causation.  The cause need not be the sole or dominant cause:  It is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause.

In Roncevich v Repatriation Commission [2005] HCA 40 the High Court of Australia held:

…

A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.

17.      In Repatriation Commission v Tuite (1993) 39 FCR 540 Burchett and Einfeld JJ accepted the Tribunal’s reasoning that the conditions experienced while in camp had caused the applicant to commence smoking:

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 of the habit until the inevitable onset of nicotinic addiction.

Davies J stated that the relevant question will usually be whether life in camp was a contributing cause, not merely the setting in which the event occurred.  He said:

If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life.  The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.

18.      In Kattenberg v Repatriation Commission (2002) 73 ALD 365 the Federal Court considered the situation in which the relevant SoP contained a factor requiring the smoking of 30 pack years of cigarettes. Emmett J stated (at 374):

…The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service.  The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service.  Accordingly, it fell into error in its application of SoP 130 of 1996.

19.      The Tribunal accepts that there was no alcohol available to Mr Whelan at the RAAF bases at which he undertook pilot training, and that his drinking occurred mainly in licensed premises at weekends or when he left the bases while not involved in flying training, sometimes at night and without permission. 

20.      The Tribunal also accepts that Mr Whelan was a young man who left the constraints of his family’s opposition to drinking and moved to an environment with other young men, where experimentation in activities such as drinking and smoking were common and may have become a way of ensuring acceptance by peers.

21.      Although he was undertaking flying for only one hour each day, Mr Whelan had other activities such as his studies to occupy him for much of his time as a student pilot.  Mr Whelan may not have had access to a large range of recreational or sporting activities when not involved in flying or his studies.  However, in large country towns some of these activities would probably have been available to him to pursue if he wished.  On the available material Mr Whelan and his colleagues made the decision to drink at hotels in their spare time rather than seek to engage in other activities.

22.      On his own evidence Mr Whelan enjoyed his time as a student pilot, and said that he coped well emotionally.  The only stress he described was in relation to Flight Lieutenant Hood.  However, there is no evidence to corroborate the assertion that Flight Lieutenant Hood’s actions led to stress that in turn contributed to Mr Whelan’s drinking.  There is no record of complaints against Flight Lieutenant Hood, who accompanied Mr Whelan in Tiger Moth aircraft for a brief period in 1944.  If Flight Lieutenant Hood was a strict instructor it would be possible for the Tribunal to conclude that a strict approach to flying training might have assisted Mr Whelan to complete 120 hours of instruction, far more than many other student pilots, and to attain an assessment of having reached the required standard.

23.      There is no doubt that Mr Whelan was frustrated and disappointed at being informed after completing his training that he was not required as a pilot, and instead was sent to Shepparton to pick fruit.  Although there appears to have been considerable free time, there is no evidence that this activity was stressful or in any way could be held to be responsible for his level of drinking.  He chose to drink when not involved in fruit-picking.  The absence of parental control could not be seen as a contributing factor, in view of the decision by the RAAF to restrict his access to alcohol when on duty.  Mr Whelan would have been able to drink while away from home, regardless of his occupation.

24.      On balance, the Tribunal concludes that Mr Whelan’s service in the RAAF may have been the setting in which he commenced to drink, but in all the circumstances his service was not a factor in him consuming the amount of alcohol specified in the SoP.  Consequently the Tribunal finds that there was no causal relationship between his service and alcohol consumption, so his condition of malignant neoplasm of the colorectum was not caused by his service, and the application does not succeed.          

DECISION

25.      The Tribunal affirms the decision under review.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)      Lydia Zozula

Associate

Dates of hearing:  22 March 2006 and 20 June 2006

Date of decision:  28 June 2006

Counsel for the applicant:            Mr A. Larkin

Solicitor for the applicant:            Williams Winter

Advocates for the respondent:     Mr R. Douglass and Ms J. McCulloch (22 March 2006) and Mr E. Nyhof (20 June 2006)

Solicitor for the respondent:        Advocacy Section, Department of Veterans’ Affairs