William Phillips and Repatriation Commission
[2016] AATA 65
•9 February 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/2860
Veterans' Appeals Division )Re: William Phillips
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM TO DECISION
TRIBUNAL: Dr Damien Cremean, Senior Member
DATE: 25 February 2016
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The Tribunal varies the decision under review and decides that the pension be paid to the applicant at 20 per cent of the General Rate with effect from 30 June 2015. The decision is otherwise affirmed.
[sgd]...................................................................
Senior Member
Phillips and Repatriation Commission (Veterans’ entitlements) [2016] AATA 65 (9 February 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2014/2860
Re
William Phillips
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Dr Damien Cremean, Senior Member
Date 9 February 2016 Place Melbourne The Tribunal affirms the decision under.
[sgd]........................................................................
Dr Damien Cremean
VETERANS ENTITLEMENTS – Claim for pension – Wernicke-Korsakoff syndrome – alcohol abuse – whether reasonable hypothesis – whether hypothesis disproved
Legislation
Veterans Entitlements Act 1986 (Cth), sections 9(1)(a),118(1),120
Cases
Bushell v Repatriation Commission (1992)175 CLR 408
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 149 ALR 721
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
9 February 2016
On 14 May 2014 the Veterans Review Board (VRB) affirmed decisions of the Respondent made on 9 October 2012 refusing claims by Mr Phillips, the Applicant, under the Veterans’ Entitlements Act 1986 (Cth) (the Act) for Wernicke-Korsakoff’s syndrome and peripheral vascular disease. The Applicant seeks review of the VRB decision concerning Wernicke-Korsakoff’s syndrome.
The Applicant is not concerned to pursue the claim for peripheral vascular disease as he agrees there is no evidence of him suffering from the condition.
The Applicant applied for review by this Tribunal on 4 June 2014. The hearing of the application was commenced by Senior Member Fice on 16 March 2015 and continued on the following day.
However, on 16 April 2015 the Senior Member recused himself. The hearing has since been resumed before me. The evidence taken before Senior Member Fice has been adopted in the review by me.
FACTUAL OUTLINE
The Applicant was born on 26 April 1939 and served in the Royal Australian Navy (Navy) from 11 April 1960 to 10 April 1969.
The Applicant had operational service on a minesweeper, HMAS Curlew, from 3 October 1965 to 16 April 1966 in Borneo, Malaya and Singapore. .
It is during this period of service that it is alleged the vessel was involved in a border incident (the Curlew incident), when it was fired upon in the vicinity of Sebatik and Nunukan Islands off Indonesia. If I follow the evidence of the Applicant and his witnesses, the bullets headed only incidentally in the direction of the vessel.
The Applicant says that as a result of the Curlew incident he was very scared. He attributes his smoking and alcohol consumption to his time in the Navy. But he is not very specific on that point.
Following an incident in about October 2011 when his wife discovered he had collapsed on the garage floor with a broken glass in his hand and spilt whiskey, the Applicant was taken by ambulance to the Bendigo Base Hospital, where he was hospitalised for about two weeks. Then he spent four months as a resident at the Anne Caudle Centre, a rehabilitation centre. Eventually he was discharged on 15 December 2011 with a principal diagnosis of Wernicke’s encephalopathy and Korsakoff’s syndrome due to long–term [alcohol] abuse.
Records relating to the Applicant note he was suffering cognitive deficit together with self-care deficit and that he had, and has, been in progressive cognitive decline over the previous two years. It was recorded that the Applicant’s only significant past medical history is that of chronic alcohol abuse and recent alcohol withdrawal.
The particular syndrome suffered by the Applicant is a form of dementing illness. A report of Dr Ng concludes that his alcohol consumption has been the predisposing factor in the development of the condition. He makes note of a CT scan of the Applicant’s brain which identifies cerebral atrophy.
Dr Mander, a consultant physician and geriatrician, examined the Applicant on 3 August 2014 and, like Dr Ng, concludes the Applicant suffers an alcohol-related dementia.
CONTENTIONS
Mr Phillips contends that his war service is causally related to his alcohol consumption and that his dementia should be accepted as war–caused within the meaning of section 9 of the Act (with effect from 30 January 2012), having regard to the operation of sections 14, 20 and 177 of the Act and to the circumstances of his service including the Curlew incident. In consequence, he submits that the decision under review should be set aside. No specific point is made about any incident involving the Curlew when minesweeping or when involved in actually blowing up mines.
The Respondent, on the other hand, contends that the decision under review should be affirmed on the basis that there is no or no sufficient material connecting the Applicant’s Wernicke–Korsakoff’s syndrome with his operational service sufficient for the purposes of the Act.
LEGISLATIVE PROVISIONS
Relevant provisions of the Act include sections 9(1) and 120. I would also include section 119(1).
Section 9(1)(a) of the Act provides:
War-caused injuries or diseases
... an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
Section 119(1) of the Act provides that in making a decision in relation to a claim or application the Tribunal in place of the Commission:
Commission not bound by technicalities
...
(g)shall act according to substantial justice and the substantial merits of the case ,without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall 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 reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran … was not reported to the appropriate authorities.
Section 120 of the Act ,as far as material, provides:
Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease …. as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(3)In applying subsection (1)....in respect of the incapacity of a person from injury or disease…related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury …;
(b)that the disease was a war-caused disease….;
...
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury [or] disease… with the circumstances of the particular service rendered by the person.
(6)Nothing in the provisions of this section….shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension ,or for an allowance or other benefit ...;
...
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
CONSIDERATION
Medical evidence
I am satisfied on the evidence, and find accordingly that, the Applicant suffers from Wernicke-Korsakoff’s syndrome. The Respondent has specifically said that there is no dispute about this.
My finding is supported by the medical evidence and materials on file and also by the medical evidence given at the hearing before the previous Senior Member. The report of Dr Ng dated 28 May 2012 gives the diagnosis of Wernicke’s encephalopathy and Korsakoff’s dementia. The predisposing factor for the development of this condition (treating both as one condition) is stated as Alcohol dependence. The report of Dr Alastair Mander dated 5 August 2014 refers to Dr Ng’s report and supports the view of the latter (Bendigo Health) as one, in summary, consistent with the hypothesis advanced. Dr Mander comments that his assessment of the Applicant on presentation is one that ... would be consistent with an alcohol related dementia. At the time he assessed him Dr Mander said in evidence that the Applicant “had no idea of…..the day, the month, the year etcetera”.
Nature of the syndrome
As is apparent from the above, Wernicke-Korsakoff syndrome develops out of a pattern of heavy drinking.
The evidence of the Mr Phillips in his Witness Statement dated 12 June 2014 (which he confirmed on affirmation) is that he commenced drinking alcohol about a year or so after enlistment. That of course is before his period of operational service which is the relevant period of this review. His oral evidence however was that he commenced drinking alcohol earlier than this.
The evidence of Mrs Phillips – the Applicant’s wife — in her Witness Statement dated 12 June 2014 (which she confirmed on affirmation) is that when she first met the Applicant in 1960 he was not drinking alcohol and that he was not drinking alcohol when their first child was born on 8 April 1965.
Mrs Phillips’ evidence appears to conflict with the Applicant’s oral testimony. Her evidence was that when he returned from war service he was drinking beer on a daily basis and excessively. She repeated in her oral evidence that the Applicant started drinking after he came back with the Curlew which, in light of an earlier question she was asked, and answer she gave, I take to mean drinking heavily. At the same time though, she agreed that his drinking was heavier after leaving his job at Esso which is some several years later. Eventually she said he came to drink wine and then spirits such as whiskey. She said he remained a heavy drinker, but not a nasty drinker, until he collapsed at home in 2011.
Wernicke-Korsakoff syndrome, as I understand it, relying on the evidence of Dr Mander, is a nutritional issue relating to dietary deficiency. The consumption of alcohol leads to vitamin deficiency in that the sufferer fails to eat foods from proper food groups due to the sufferer obtaining calorie intake from alcohol. The sufferer loses out on thiamine. Instead, alcohol is the primary nutrient and this basically metabolises as sugar. The same syndrome could be suffered by a person who drank soft drinks for weeks or months on end and consumed no food. But in the case of alcoholics the syndrome is quite a common problem.
The Respondent asked no questions of Dr Mander and I accept his unchallenged evidence accordingly.
I therefore accept and find that the Applicant’s Wernicke-Korsakoff syndrome is a form of dementia brought on by excessive alcohol consumption and that it has developed in him in the way described generally by Dr Mander.
Hypothesis advanced
Having regard to section 120 (3) of the Act, Mr Phillips advances the hypothesis that his Wernicke-Korsakoff syndrome was a war-caused injury or disease in the circumstances of the particular service rendered by him. That is to say, his alcoholic dementia has been caused by his war-service. In particular, reliance is placed on the Curlew incident. It is argued on his behalf that such hypothesis is reasonable considering all the materials in light of authorities on the point.
It is submitted that the hypothesis is raised on the basis of these considerations:
·the Applicant commenced drinking alcohol heavily partly or wholly as a result of being fired upon whilst serving on the Curlew;
·the Applicant continued drinking heavily following his return from operational service up until the onset of Wernicke- Korsakoff syndrome; and
·the Applicant’s alcohol consumption contributed to the development of Wernicke-Korsakoff syndrome.
Consequently, it is argued on the Applicant’s behalf, that by virtue of s 120(1) of the Act the Tribunal should be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that Mr Phillips’ injury or disease was not war-caused.
It is necessary for this question of the reasonable hypothesis to be considered because, despite initial confusion, as correctly pointed out by the Respondent, no Statement of Principles applies in this case. Hence section 120A of the Act does not govern the situation.
The Respondent in answer submits that the materials do not raise a reasonable hypothesis connecting the Applicant’s syndrome with his operational service That is to say there is no evidence pointing to a causal connection between such service and Mr Phillips’ alcohol abuse and thus the hypothesis sought to be raised is not pointed to by the materials. Such a hypothesis, the Respondent argues is left open only as a mere possibility and is too tenuous on the materials.
Consequently the Respondent submits that there is no occasion to say that the Tribunal should be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the Applicant’s injury or disease was not war-caused.
Relevant authorities
I was referred to a number of authorities on the operation of sections 120(1) and (3) of the Act.
A leading authority is Bushell v Repatriation Commission (1992) 175 CLR 408. In that case (at [8]-[9]) Mason CJ ,Deane and McHugh JJ said as follows:
[8] The material will raise a reasonable hypothesis within the meaning of s120(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. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. ...
[9] However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature" ... Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous"...
Earlier in East v Repatriation Commission (1987) 74 ALR 518 at 534 Jenkinson, Neaves and Wilcox JJ said that :
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.
This was quoted with approval by Northrop ACJ, Sundberg, Marshall and Merkel JJ, in Repatriation Commission v Bey (1997) 149 ALR 721 at 729. Earlier in the same case (at 724), their Honours set out the method of applying sections 120(1) and (3) of the Act as follows:
...
(1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
(2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the “raised facts”) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.
(3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
(4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
R D Nicholson J, in the same case, agreeing with the plurality, and referring (at 734) to Bushell, above, said that it would be rare for a hypothesis put forward by a medical practitioner who is eminent in the relevant field of knowledge to be held to be unreasonable and then said this:
(7) A “mere possibility”, in the sense of a hypothesis advanced, for example, by a medical practitioner speaking within the ambit of his expertise, will ordinarily raise a reasonable hypothesis. ...
(8) A “mere possibility”, in the sense of a hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis — it will not be a hypothesis “raised by the facts”.
The raised facts
The Applicant’s counsel, in opening, referred to a number of factors of relevance to the Applicant’s heavy drinking during operational service. They included the life-threatening event of the Curlew incident; stress or anxiety of being in a warzone; peer group pressure to drink; and the easy availability of alcohol.
In the end, however, counsel relied on the Curlew incident in grounding the hypothesis in its effects on the Applicant, leading to alcohol dependence and thus to dementia. This is because the Applicant’s own evidence did not support a view that the other factors were of significance. The Applicant himself denied in evidence that he drank alcohol during service due to peer pressure. He denied that while on shore leave he felt any pressure from other persons to drink alcohol. He said he was not bored during service because he was busy. He said, as regards how he felt being in being in a war-zone, that I don’t think about it. And he denied drinking alcohol to avoid thinking about even being in a war-zone. Finally, the evidence relating to the availability of alcohol on service was equivocal or unclear.
As regards the Curlew incident, I heard evidence from several persons (including Messrs Bensted ,Ward, Willcox and Baker) and I also received into evidence the Ship’s Log (Log) and various Reports of Proceedings of the Curlew for relevant periods.
All the witnesses who gave evidence on the point recalled an incident in which the Curlew was fired upon in or near Indonesian waters --perhaps by Indonesian military. Accounts between them differed however so that the Curlew incident, following cross-examination, became a little nebulous in exact detail. But it does seem to me the incident did occur and that bullets of one description or another either fell short of or went over the vessel to a greater or lesser distance.
The Report of Proceedings for December 1965, signed by Mr Willcox in his official capacity at the time, reports an incident of note:
at 18.45 Thursday 30th December when ,whilst shifting to the night anchorage, several tracer bullets from a minor skirmish came in the direction of the ship.
It states that:
Despite them falling very short it did much to remind the ships company of the purpose of their service in this area.
The area in question appears to be the Wallace Bay-Nunukan area. However, as was pointed out, this does not appear to accord with the movements of the vessel on that date in the Log. On that date the Log contains no record of such an incident occurring. Much was sought to be made of this discrepancy but Mr Willcox in his evidence said his Report of Proceedings was wrong and, while he could not explain the lack of reference to the matter in the Log, he did explain that he was not the one who kept the Log.
I am quite satisfied on the evidence that the Curlew incident did occur and that on or about 26 (or 27) December 1965 in the general area mentioned the vessel was fired upon and that the bullets which landed in the water either fell short of or went over the vessel.
I am not troubled by the Curlew incident not appearing in the Log. I am unable to say why it does not appear there but I know of no authority that makes a ship’s Log conclusive evidence of what it does or does not set out. I consider this an appropriate occasion for the Tribunal to rely upon section 119(1)(h)(ii) of the Act, if need be, due to a deficiency in formal records.
I have already noted that Mr Phillips has said in his affirmed Witness Statement that he was very scared by the Curlew incident. Elaborating on this point in that Statement he said that he was fearful of the ship being damaged and me consequently drowning. In his evidence he said he thought that the ship could explode, it could go aground. He says he lifted the hatch and then put it down because he was not going to stick my head out twice. At the same time, though, he says he now suffers poor memory and concentration. Mrs Phillips in her affirmed Witness Statement recalls him telling her that the vessel was fired upon and that he was frightened of being in a war-zone. In addition, their daughter — Ms Harbrow — in her affirmed Witness Statement dated 18 March 2015, remembers her father telling her about the time he was shot at during war-service.
If the Curlew incident did occur, as I accept it did, it would have been a nasty experience for everyone. Mr Ward (in his affirmed Witness Statement) said it was a frightening incident and in his evidence spoke of people on board ducking for cover and of him hitting the deck. Mr Willcox in his affirmed evidence spoke of a need to get the hell out of there. Mr Baker (in his affirmed Witness Statement) said he was extremely frightened and scared about what would happen if the vessel was hit by incoming fire.
In all the circumstances, I accept that the Curlew incident was indeed a frightening one. I consider I am able to accept this was so based on the evidence of all the witnesses.
Characterisation of hypothesis
The Applicant relies on the Curlew incident as resulting in his alcoholism, which lead to dementia. Applicant’s counsel submitted that the Applicant commenced drinking alcohol heavily partly or wholly as a result of being fired upon while serving on the Curlew ie as a result of the Curlew incident. The hypothesis sought to be raised then continues that Mr Phillips continued drinking heavily following his return from operational service until the onset of Wernicke-Korsakoff syndrome. Counsel submitted that his alcohol consumption contributed to the development of that syndrome. I find as a fact that this is the proper characterisation of the hypothesis sought to be raised.
This hypothesis is not to my mind obviously fanciful or unreal in its terms. At this preliminary stage, I may say it is one pointed to by the facts. But that is not to say it is one in reality raised by the facts.
Nor does the hypothesis seem to be impossible. It is not irrational to believe that someone could turn to heavy alcohol consumption following an incident such as the Curlew incident. It is quite possible for that to happen and for alcohol dependence to follow resulting in Wernicke-Korsakoff syndrome causing dementia. This does not seem to me to be absurd or irrational. Already, I have said I find that that syndrome is brought on by excessive alcohol consumption.
Whether hypothesis reasonable
However, turning to the whole of the evidence in the case, and to the circumstances of the Applicant’s service, I regard the hypothesis advanced as merely a possibility and not more than that. It is too tenuous. I find the hypothesis as one which in reality is not raised by the facts.
Mrs Philips, who said she does not consume alcohol, gave evidence she found the Applicant was drinking beer daily and excessively after returning home from service. I am unable to be clear about what she meant by excessively given that she does not consume alcohol herself. She and someone else who does consume alcohol could have different understandings of what constitutes excessive alcohol consumption.
But even if I accept that Mrs Phillips’ understanding and the understanding of someone else who does consume alcohol would not be different, I am unable reasonably to relate that circumstance – to link it, to use an expression – to the Curlew incident. Moreover, the Applicant himself said in evidence that after service he was drinking only Very little. That does not seem to correspond to the evidence of Mrs Phillips that he was drinking excessively. And these are matters I note occurred perhaps nearly 50 years ago.
It is plain to me also that the Applicant was drinking alcohol long before the Curlew incident. This is the case I think despite his wife’s evidence. He was in a position to know about this. Either he was drinking alcohol after he enlisted and before he was on the Curlew or he was drinking alcohol before even enlisting. It is obvious then that his consumption of alcohol did not commence with or after the Curlew incident. Nor is there any clear statement by the Applicant that his drinking became heavier – or even partly heavier – because of the Curlew incident
In addition, the Applicant’s evidence was that he worked for many years for Esso after returning from service and retired at age 55. But during his time there he said he may have drunk alcohol only a little bit. However, this appears to have changed after leaving Esso when perhaps he found that not being in work he had more time on his hands. Mrs Phillips agreed in evidence that the Applicant’s drinking became heavier after leaving Esso. But that period in the Applicant’s life – after Esso – seems to be quite removed from the Curlew incident and I am unable to see the relation between the two – drinking more heavily after leaving Esso and the Curlew incident – at that time. There is nothing in the evidence to indicate that once he left Esso the Applicant began drinking heavily because of the Curlew incident. Once again, no link is apparent.
The contention that the Applicant continued drinking heavily following his return from operational service until the onset of Wernicke-Korsakoff syndrome does not seem to be borne out by the amount he said he was drinking while at Esso, for the many years he was there. No doubt his consumption did become heavier after leaving Esso but there seems to be an interruption in the continuum from his operational service to that stage which is sought to be advanced.
Certainly on the Curlew while on shore leave, to use his own words, he was drinking A fair bit. But there is no actual statement by him at any point that his alcohol abuse was brought on by the Curlew incident. Or to say that he drank alcohol heavily afterwards to forget or to help him cope with the Curlew incident. That is not to say, I make clear, that any onus of proof applies to him.
In the Alcohol Questionnaire dated 9 September 2012 the Applicant attributes his alcohol consumption only to Combat Duties. He does not mention the Curlew incident. I consider this is significant. If the Curlew incident was playing on his mind, I would expect him to have mentioned it rather than referring merely to combat duties when asked a direct question on the subject.
Equally significant is the fact that Dr Mander at no point attributes the Applicant’s alcoholism to any incident occurring on operational service. Dr D’Ortenzio, psychiatrist, in a report dated 26 September 2012, reports being unable:
to establish any specific history indicative of specific difficulties during his service
Referring to the Applicant Dr D’Ortenzio says:.
Overall I was not able … to establish any specific history linking his later alcohol abuse and dependence problems with his military service.
There is no other evidence which in my view links the Applicant’s alcohol abuse and the Curlew incident – which I have accepted was a frightening one. Even though I accept this was so, I note the Applicant denied that his service in the Navy was stressful. If his naval service was not stressful, I am unable to see how it was that the Curlew incident led to him drinking heavily.
I have indicated my view that, for these reasons, the hypothesis sought to be advanced by the Applicant is merely a possibility and nothing more than that. In such circumstances, I consider the hypothesis as being not one in reality raised by the facts. The facts when properly analysed do not point to the hypothesis being established but rather point away from it.
Alternatively, I am satisfied beyond reasonable doubt that the hypothesis is disproved. In that regard, I consider it disproved by the fact that the Applicant on his own admission in oral testimony commenced drinking alcohol long before the Curlew incident such that his consumption of alcohol does not originate from that incident. The Curlew incident bears no relationship to him having started drinking alcohol. He started drinking alcohol quite some time before the Curlew incident. Furthermore, in evidence, the Applicant himself agreed that he did not think he was drinking heavily after his service on the Curlew. That distinctly points away from him returning home later on from service and drinking excessively because of the Curlew incident.
Further, or alternatively, having commenced drinking alcohol before the Curlew incident, there is nothing in the evidence given by the Applicant, who would be in a position to know, that he took up heavy drinking because of the Curlew incident. Evidence of that kind, and clearly to that effect, is lacking. It is lacking, moreover, in circumstances where adequate opportunity has existed for that evidence to be given – if it was available to be given, and was or would be true. Yet it has not been given. This in my view also points away from the hypothesis and in doing so shows it is disproved.
In all the circumstances, I do not find the hypothesis raised a reasonable one as being in reality raised by the facts. Alternatively, I find it is one which is disproved.
The Applicant in my view is for these reasons unable to take advantage of section 120(1) of the Act
CONCLUSION
For the above reasons I am satisfied that the decision under review must be affirmed.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member [sgd]........................................................................
Administrative Assistant
Dated 9 February 2016
Dates of hearing 25 November 2015 & 27 November 2015 Date final submissions received 12 January 2016 Counsel for the Applicant Ms Fiona Spencer Solicitors for the Applicant Michael Jorgensen - Williams Winter Solicitors Advocate for the Respondent Mr Ken Rudge – Department of Veterans' Affairs
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