Whinnen and Repatriation Commission - [2001] AATA 1039

DECISION AND REASONS FOR DECISION [2001] AATA 1039

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1432
VETERANS'     APPEALS      DIVISION
  Re:         DOROTHY WHINNEN
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:              24 December 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - cirrhosis of the liver - excessive consumption of alcohol - whether war-caused
Veterans' Entitlements Act 1986 s8, 119(1)(h), 120(1), 120(3), 120(4)
Critch v Repatriation Commission (1996) 43 ALD 574
East v Repatriation Commission (1987) 16 FCR 517
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission vLaw (1980) 31 ALR 140
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Tuite (1993) 29 ALD 609

REASONS FOR DECISION

24 December 2001 G.D. Friedman, Member

This is an application by Dorothy Whinnen (the applicant), widow of Charles William Whinnen (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 5 September 2000. The VRB affirmed a decision of a delegate of the respondent, dated 4 November 1999, to refuse a claim for disability pension for incapacity from cirrhosis of the liver secondary to alcohol consumption because the death was not war-caused.
At the hearing of this matter on 5 December 2001 Mr D. Hyde of Counsel represented the applicant and Mr G. Purcell of Counsel represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with two exhibits lodged by the applicant (Exhibits A1 and A2) and five lodged by the respondent (Exhibits R1-R5).
BACKGROUND
The veteran was born on 13 October 1928. At the age of 17 years he joined the Royal Australian Navy (the navy) and served from 5 March 1946 to 13 October 1958 and from 24 October 1958 to 23 April 1961 as a steward. In accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), the period from 5 March 1946 to 6 May 1948 was eligible service. The periods from 7 May 1948 to 30 September 1949, and from 5 April 1957 to 2 May 1957 (service on board HMAS Warramunga in the Far East Strategic Reserve) were operational service.
After initial training at HMAS Cerberus, the veteran was posted to HMAS Leeuwin (a ship in reserve) in Western Australia on 27 September 1946. On 13 May 1947 he was posted to HMAS Karangi, also in reserve. On 7 May 1948 he was posted to HMAS Tarangau, a naval base in Papua New Guinea. This posting ended on 3 January 1949, when the veteran returned to HMAS Cerberus. He went to sea from 1951 to 1954, and from 1956 to 1957. After his discharge from the navy the veteran worked in a service station. He then leased his own service station for seven years, after which he operated his own catering business, before working for a catering company. He then drove a courier van, before retiring in 1988.
The veteran had a long history of heavy alcohol use and many admissions to hospital, mainly as a result of complications from cirrhosis of the liver and liver failure. He died on 21 May 1999.
On 23 November 2000 the applicant sought review of the VRB decision by the Tribunal.
EVIDENCE
The applicant told the Tribunal that she first met the veteran in 1950, at a hotel. He was already in the navy and drank alcohol on a regular basis. The applicant stated that she and the veteran were married in 1951, when the veteran was stationed at HMAS Cerberus. Following their marriage she became concerned at his level of drinking, and the couple argued frequently about this subject, although she said that he did not try to modify his drinking. She said that on a number of occasions he would drink and fall asleep whilst driving his motorcycle or car, and on one occasion their first child, who was aged three months at the time, was thrown out of the car when the veteran's vehicle ran off the road. The applicant told the Tribunal that the veteran usually drank at home by himself, or at the local hotel.
The applicant said that the veteran drank beer and wine, and she estimated that his consumption rose to the equivalent of four bottles of beer or one cask of wine, each day. She stated that she and the veteran did not discuss whether he believed that his navy service contributed to his alcohol problems, although she said that the veteran's brother told her that the veteran was a non-drinker when he enlisted in the navy. The applicant stated that a former member of the navy, who served with the veteran, confirmed to her that in the 1950s the veteran drank whilst on duty, but was never charged with any alcohol-related offence.
In a written report dated 29 May 2001 (Exhibit A1) Dr E. Cole, psychiatrist, stated he interviewed the applicant in connection with the death of the veteran. He said that the veteran's death from cirrhosis of the liver was due to his drinking, which had increased whilst the veteran was at sea and continued after his discharge from the navy. Dr Cole noted that:
One can only speculate as to why he started drinking after he joined the Navy, but the usual reasons given by ex-servicemen are peer pressure, the ready availability of alcohol, long periods of boredom and perhaps periods of stress. Little seems to be known about his experiences during the period, that he served overseas, but, according to his widow, there is no evidence to suggest that he suffered from any nervous symptoms upon his return apart from the fact that his alcohol consumption had increased.

In oral evidence Dr Cole confirmed that he was not aware of the circumstances of the veteran's case or whether the veteran's drinking was caused by boredom, stress or other factors.

In written reports dated 27 August 2001, 12 September 2001 and 30 November 2001 (Exhibits R1-R3), Mr P. Mulcare, on behalf of Write Way Research Service, described the movements of ships on which the applicant was posted. In oral evidence Mr Mulcare said that there was no issue of beer on naval ships until the mid-1950s. He stated that alcohol was freely available to naval personnel when they were not on duty.
CONSIDERATION OF THE ISSUES
The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury to war service is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant.
Mr Hyde, on behalf of the applicant, noted that there was no dispute between the parties that the veteran had rendered operational service, so that s120(1) and s120(3) of the Act apply, and the Tribunal must determine that the disease was a war-caused disease unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. Mr Hyde submitted that the applicable SoPs were Nº 35 of 1998 and Nº 36 of 1998 concerning cirrhosis of the liver. Risk factor 5(a) states:
for men, consuming at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver.
Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits within, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Mr Hyde submitted that the hypothesis fits within the template and is reasonable. He relied on an undated letter to the Returned Services League, by the veteran's brother, who stated that he was positive that the veteran …never drank alcohol when he joined the Navy at 17 years. By discharge he became [an] alcoholic. Mr Hyde also relied on the applicant's evidence that when she met the veteran in 1950 he was a regular drinker, and the evidence of Mr Mulcare that alcohol was freely available to naval personnel.
The fourth step requires the Tribunal to consider, under s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the disease was not war-caused, and at this stage the Tribunal is required to make findings on questions of fact. Mr Hyde said that when the applicant joined the navy he was a 17 year-old who was a non-drinker, or at most, a very light drinker. He stated that because of peer pressure, boredom, inactivity and the availability of alcohol an inference should be drawn that the applicant had developed a drinking habit after joining the navy, and that he began to consume alcohol because of those factors.
Mr Hyde referred the Tribunal to Critch v Repatriation Commission (1996) 43 ALD 574 in which the Federal Court referred to Repatriation Commission v Law (1980) 31 ALR 140. In the latter case the Court accepted that an inference that smoking was war-caused may be drawn in reliance upon expert medical evidence as to the likelihood of that having occurred in the course of the particular service of the veteran. In Repatriation Commission v Stares (1996) 41 ALD 212 the Court stated at p 218:
It was of course implicit in the evidence of Dr Sime that, as a matter of medical knowledge, operational military service with the infantry in time of war was capable of causing stress-related alcohol consumption such as to set off serious drinking problems in later life. This does not appear to have been challenged by the respondent, as a general proposition, before the tribunal.
Mr Hyde referred the Tribunal to Repatriation Commission v Tuite (1993) 29 ALD 609 in which the Federal Court noted that causation is a question of fact and that the circumstances and incidents of army camp life, including peer pressure, can be a contributing cause to taking up smoking and that is a consequence of war service. At par 8 the Court stated:
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.
Mr Hyde acknowledged that there was no direct evidence concerning the drinking habits of the veteran after he enlisted in the navy. However he submitted that the Act is an example of beneficial legislation that should be construed in the applicant's favour. Further Mr Hyde submitted that the Tribunal should take into account the passage of time since the veteran's operational service. He noted that the provisions of s119(1)(h) of the Act were designed to excuse evidential defects in claims or applications in recognition of the special problems of proof in the veterans' entitlements system.
Mr Purcell, on behalf of the respondent, conceded that the veteran had consumed at least 150 kg of alcohol (contained within alcoholic drinks) within a 10-year period before the clinical onset of cirrhosis of the liver, and that he satisfied the criteria in risk factor 5(a) of the relevant SoP. However, he submitted that the risk factor was not causally related to the veteran's operational service, and that, accordingly, the applicant's circumstances could not satisfy the four steps set out by the Federal Court in Deledio.
Mr Purcell did not dispute that the applicant satisfied steps one and two. In relation to step three, Mr Purcell stated that the Tribunal should consider the raised facts to determine whether the template is satisfied. These facts were that the veteran joined the navy at the age of 17 years, he was a non-drinker or light drinker at the time, and he rendered operational service as a steward mainly in shore bases located in Victoria, Western Australia and Papua New Guinea. Mr Purcell submitted that in order to satisfy risk factor 5(a) the veteran must have acquired his drinking habit by 3 January 1949 (the end of the first period of operational service).
Mr Purcell referred the Tribunal to East v Repatriation Commission (1987) 16 FCR 517 in which the Full Federal Court stated at p 533:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

He submitted that in this case the raised facts fall short of fitting the template. He said that there was no evidence of peer pressure, boredom or stress affecting the veteran, and no evidence about the personality of the veteran or of his individual circumstances that contributed to his drinking habit. He said that there was nothing in Dr Cole's report that would suggest that the veteran suffered from a psychiatric condition and that this supported the view that any conclusions about the cause of the veteran's drinking habit were speculative.

In relation to the fourth step, Mr Purcell submitted that there was insufficient material regarding the circumstances of the veteran commencing and continuing to drink. He said that consequently there would be difficulty in the Tribunal drawing inferences, requiring a reasonably solid factual foundation, that would satisfy the requirements of s120(1) and s120(3) of the Act. Mr Purcell submitted that, for these reasons, the applicant had control over his alcohol consumption and there was no causal or temporal connection between his drinking and his operational service. Mr Purcell stated further that s119(1)(h) was of limited application, because there was no evidence concerning the circumstances of the veteran's drinking habits after he joined the navy, and this was not necessarily affected by the passage of time or the availability of witnesses.

In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120(4), that there is a disease as claimed. In this case there was no dispute between the parties and the Tribunal finds that the veteran died from cirrhosis of the liver secondary to alcohol consumption. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran.

In respect of the second step, there was no dispute between the parties and the Tribunal finds that SoP Nº 35 of 1998 and Nº 36 of 1998 determined by the Repatriation Medical Authority under s196B(2) or (11) of the Act are in force.

In respect of the third step, there was no dispute between the parties that, having regard to the history of alcohol use, by 1950 the veteran had a well-established pattern of alcohol use and consumed at least 150kg of alcohol (contained within alcoholic drinks) within a 10-year period before the clinical onset of cirrhosis of the liver. The Tribunal finds that he satisfies the criteria in risk factor 5(a) of the relevant SoP. In all the circumstances the hypothesis identified in the first step is consistent with the template to be found in the SoPs and is a reasonable one.

In respect of the fourth step, concerning whether the Tribunal is satisfied beyond reasonable doubt that the disease was not war-caused, the Tribunal takes into account the evidence from the veteran's brother and finds that the veteran was a non-drinker or, at most, a light drinker when he joined the navy as a 17 year-old, and that alcohol was available during the period of the veteran's operational service. The Tribunal accepts the evidence from the applicant that the veteran was a moderate drinker when she met him in 1950 and that his consumption of alcohol increased over time. However, In applying the test in Tuite the Tribunal finds that there is no evidence about the circumstances in which the veteran commenced drinking or continued drinking during the relevant periods. There is no evidence about the level of peer pressure, if any, at the places where the veteran was posted, or of boredom, stress or other factors that might have contributed to his drinking. There is no evidence about the veteran's access to alcohol, and the report from Dr Cole is of little assistance, as it is based on recollection by the applicant during one interview, after the death of the veteran.

Consequently, the Tribunal finds that there is insufficient material on which to draw reasonable or rational inferences concerning the facts of the veteran's drinking. The Tribunal accepts the submission from Mr Purcell that the provisions of s119(1)(h) of the Act, in relation to the effect of the passage of time, are of limited application in this case.

In view of its findings the Tribunal is satisfied beyond reasonable doubt that the disease was not war-caused as set out in s8 of the Act.

DECISION

The Tribunal affirms the decision under review.

I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision of
G.D.Friedman, Member
(sgd)       Olympia Sarrinikolaou
              Clerk
Date of hearing:  5 December 2001
Date of decision:  24 December 2001
Counsel for applicant:                 Mr D. Hyde
Solicitor for applicant:                  De Marchi & Associates
Counsel for respondent:              Mr G.Purcell
Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs