Williams and Repatriation Commission - [2000] AATA 272

DECISION AND REASONS FOR DECISION [2000] AATA 272

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1714

VETERAN'S APPEALS DIVISION )

Re John Edward WILLIAMS
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Rear Admiral A.R. Horton, Member

Date7 April 2000
PlaceSydney

Decision The Tribunal - (a) sets aside that part of the decision under review that refused the claim of John Edward Williams ("the Applicant") in respect of organic brain damage and assessed pension at 70 percent of the General Rate; (b) in substitution therefor, it determines that the Applicant's organic brain damage was war-caused pursuant to s 9 of the Veterans' Entitlement Act 1988 ("the Act"), and that pursuant to s 24 of the Act the Applicant is entitled to pension at the Special Rate with effect from 4 September 1996.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war-caused alcohol abuse and personality disorder – motor vehicle accident - organic brain damage – whether an accepted disability contributed to car accident – whether organic brain damage arose from war-caused injury or disease – whether pension not payable due to serious default or wilful act

Veterans' Entitlement Act 1986 ss 9(1)(b), 9(2)(a), 9(4), 24(1)(b), 120(1), 120(3), 120(4)

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Ferriday v Repatriation Commission (1996) 69 FCR 521
Lowerson v Repatriation Commission (1994) 33 ALD 385
McPherson v Repatriation Commission (1989) 87 ALR 275
Repatriation Commission v Levi (1994) 61 FCR 189

REASONS FOR DECISION

7 April 2000 Mrs M T Lewis, Senior Member
Rear Admiral A.R. Horton, Member

This is an application lodged by John Edward Williams ("the Applicant") for review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 14 May 1997 which accepted the Applicant's claim for psychoactive substance abuse (alcohol), and refused the Applicant's claim in respect of organic brain damage. Disability pension was assessed at 70% of the General Rate, effective from 4 September 1996. The Applicant sought review by the Veterans' Review Board ("the VRB") and on 29 July 1998 the VRB affirmed the decision of the Respondent.
The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Applicant's wife, Mrs Robyn Williams, gave oral evidence at the hearing.
The following documentary evidence was tendered on behalf of the Applicant:

Written statement of Robyn Williams dated 27 April 1999 and another that was undated (exhibit A);
Letter from Commercial Union Assurance Company of Australia Ltd to the Applicant, dated 10 May 1983 (exhibit B).

The following conditions suffered by the Applicant have been accepted as war-caused:
(i)psychoactive substance abuse or dependence;
(ii)perceptive deafness;
(iii)hyperkeratoses;
(iv)neurodermatitis;
(v)inadequate personality with gastrointestinal disorder.
The issue before the Tribunal is whether the Applicant's organic brain damage is a war-caused injury, as defined by s 9(1)(b) of the Act and whether s 9(4) has the effect of excluding him from the application of s 9(1).
Pursuant to s 120A(4) of the Act, although the Applicant's claim was lodged after 1 June 1994, as there is no Statement of Principles in respect of organic brain damage, this matter falls for determination pursuant to s 120(1) and (3) of the Act.
background
The Applicant was born on 5 March 1945, and was aged 54 years at the time of the hearing. He served in the Army on full-time duty from 30 June 1965 to 29 June 1967, including operational service in Vietnam from 6 May 1966 to 12 May 1967 (T3).
After gaining his intermediate certificate, the Applicant qualified as a wool classer and worked as a shearer. He worked in sales after his military service, and then entered the building industry, and from 1979 he owned and operated his own concrete company. He married in 1968 and has three children (T32).
In an Alcohol Questionnaire completed on 24 November 1996 (T26) the Applicant said that his drinking habit changed from drinking 1 to 2 beers per week for social reasons, to drinking 18 or more standard drinks per day since his active service in Vietnam. This level of drinking is not consistent with the history he provided at the time of a medical examination in October 1967 (T4). At that time he said he had two drinks per day on average.
The Applicant was involved in a car accident on 30 December 1982, as a result of which he now suffers from organic brain damage. He was unable to give evidence at the hearing because of his condition.
evidence of robyn williams
In her oral evidence Mrs Williams said that the Applicant did not drink very much prior to going to Vietnam, but when he returned he drank for two months at the hotel, constantly. It took him three months to find a job after returning from Vietnam. He obtained a job working for Goodyear Tyre and Rubber as a service manager, and continued to drink after work every night. This pattern continued until the time of his accident. She estimated that he drank up to four or five schooners a night. She said until 1982 she saw him drunk regularly, and she was not aware that he made any attempts to reduce his drinking.
Mrs Williams and the Applicant moved from Sydney to Mullumbimby. He had his own concreting business in Mullumbimby. She said –
… we used to have a lot of men working for us. After work, after they would do concreting they would go back to a hotel and John [the Applicant] would shout them tea and they would drink there. Then he wasn't capable, that would be say 40 – 50 kilometres away, and he would just drive a little bit because he was driving a 5 tonner then and he would just stop because he couldn't go any further and just sleep, pull up on the side of the road and arrive home early hours of the morning. (Transcript p4 )

She said he did this quite regularly, including around the time of the accident in 1982. Mrs Williams said that he did not usually stop on the way home when he had been drinking locally, but always stopped by the side of the road to sleep when he had been further from home.

Mrs Williams believed that on 30 December 1982, the day of the accident, the Applicant had been drinking at the local RSL club from approximately 2.30 or 3.00 pm. The RSL club is located about 5 or 6 kilometres from their home. Subsequently she spoke to the club supervisor who had been on duty on the day in question, and he told her "he knew he shouldn't have let John drive home that night". Mrs Williams did not remember the supervisor's name and understood that he has since moved. She said from her observations of her husband's drinking, he probably would have had 5 or 6 schooners between 2.30 or 3pm and 7 or 8pm when he left the club that night.
In her undated statement (exhibit A) Mrs Williams said that following the accident the Applicant was charged and convicted of driving with a blood alcohol level above the prescribed minimum. When Mrs Williams attempted in about April 1999 to obtain the traffic accident report she was advised that such records were not kept for more than ten years.
In her statement dated 22 April 1999 (exhibit A) Mrs Williams said that she was still repaying the loan for the new holden V8 one tonne truck which was wrecked in the accident. She said that the insurance company refused to pay the claim because the Applicant was driving under the influence. A letter from the Commercial Union Assurance Co. of Aust. Ltd dated 10 May 1983 to the Applicant (exhibit B) noted that his blood alcohol was .125 which is in excess of the amount permitted by law. As he was in breach of General Exclusion A(c) of the Policy Conditions, the insurance company refused to indemnify him for the loss of the vehicle.
In cross-examination Mrs Williams said that she did not know why the Applicant drank. She said that he would get angry if she tried to discuss his drinking. She had discussed the issue of drink driving with him on a number of occasions, but he rejected her advice not to drink and drive for short distances.
medical evidence
In a Departmental medical report dated 25 January 1983 (T7) the Applicant was diagnosed as suffering from 'organic brain syndrome' arising from brain damage caused by a closed head injury due to the car accident in 1982.
Dr Freeman, psychiatrist (T10), who was involved in the Applicant's rehabilitation program following his accident, concluded that the Applicant has "all the features of a very severe acute brain syndrome, which was undoubtedly related to left sided brain abnormalities caused by a serious car accident sustained two weeks previously".
Dr Cole, the Applicant's treating psychiatrist, in a letter dated 9 March 1983 (T11), confirmed that the Applicant suffers from clinical brain damage. He noted that the Applicant had a "patchy" memory and was unable to give an account about the accident. Dr Cole said "the main thing he kept indicating about the accident was something to do with cattle and I came to the conclusion rightly or wrongly that perhaps he was saying that he had ran into some cattle – or at least that cattle were somehow involved in the accident".
relevant legislation
The relevant sections of the Act are as follows:
War-caused injuries or diseases
9. (1) Subject to this section, for the purposes of this Act, 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)…
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a)   if that incapacity was due to an accident – that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; …
(3) …
(4) Subsections (1) and (2) do not apply to an injury suffered, or disease contracted, by a veteran if the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.
Standard of Proof
120.     (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to 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 or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
        (2) …
      (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of the person, 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 or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence–caused disease; or
(c) …
as the case may be, if the Commission, after consideration of the whole of the evidence before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

respondent's submissions

The evidence shows that the Applicant regularly drank and drove from 1967 to 1982. It was submitted for the Respondent that this showed the Applicant's reckless disregard for the safety of himself and others. In 1982 the problems associated with drink driving were advertised on television and the Applicant could not have been unaware that drinking impaired one's ability to drive. Drink driving is also a serious criminal offence with severe punishments under New South Wales law.
The Respondent submitted that drink driving was a regular habit of the Applicant. As it was brought to his attention whilst he was sober that he should not be doing it, and as he ignored that advice, then this shows a wilful intention to continue with a form of behaviour which is reckless and a level of behaviour which should be taken as warranting severe condemnation
The Respondent submitted that the Applicant's blood alcohol was .125 which is not "dramatically high", and that driving in that state was a wilful act as he was not so severely intoxicated that there could be no intent. For that reason driving under the influence of alcohol, which caused his organic brain damage condition, resulted from the serious default or wilful act of the Applicant. For those reasons it was submitted that s 9(4) of the Act would exclude the Applicant from acceptance of the condition of organic brain damage.
It was submitted for the Respondent that, when interpreting s 9(4), Ferriday v Repatriation Commission (1996) 69 FCR 521 and McPherson v Repatriation Commission (1989) 87 ALR 275, support the proposition that 'serious default' or 'wilful act' has to be something more than a misdemeanour; it must be conduct which warrants condemnation.
applicant's submissions
It was submitted that the Applicant satisfies ss 9(1)(b) and 9(2)(a) of the Act. The Applicant's condition of organic brain damage was the result of a motor vehicle accident that was caused by his accepted disability of psychoactive substance abuse or dependence.
The test for the Tribunal to consider is whether it is reasonably satisfied that driving a vehicle at two and a half times the legal limit is a serious default or a wilful act. It was submitted that the Applicant's blood alcohol level was high enough for him not to be capable of making that intent.
The Applicant submitted that the Federal Court in McPherson considered the interpretation of s 9(4). In that decision the Court clarified that "serious" stands alone with "default" and that the two phrases "serious default" and "wilful act" stand separately; "serious" is not to be read with "wilful act". It was submitted for the Applicant that in the context of the Act, "wilful act" connotes conduct that is blameworthy and deserving of serious censure. It was also submitted that the effect of depriving a veteran of a pension to which he is entitled is to penalise him severely. It was submitted that the legislation could not have intended that such a severe penalty should be visited upon a veteran in the absence of conduct warranting such condemnation.
It was submitted that based on the DSMIV, people who suffer from alcohol abuse do put themselves in situations that are physically hazardous. It was submitted that the use of alcohol linked with driving fits this criterion.
From 1967, and at the time of the accident, the Applicant had an accepted disability - inadequate personality disorder. The Applicant submitted that the Tribunal should consider whether, on the balance of probabilities, a person who suffered from a personality disorder was affected in the response he gave about drink driving, even when he was not drunk. By the time the Applicant drove, he was incapable, because of his level of intoxication, of making that wilful decision.
consideration of evidence and findings of fact
Section 120 describes the standard of proof in determining whether an injury is war-caused. In Byrnes v Repatriation Commision (1993) 177 CLR 564 at 571 the Court summarised the relationship between subs. 120 (1) and (3) as follows:
(1) First sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war-service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not an issue at this point.
The Court then went on to say that if a reasonable hypothesis is established, subs (1) of s 120 is applied. Applying the test outlined in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414, the Tribunal must first consider whether the evidence raises a reasonable hypothesis within the meaning of s 120(3) of the Act; namely, whether the evidence points to some fact or facts ("the raised facts") which support the hypothesis and would allow the hypothesis to be regarded as reasonable if the raised facts are true.
The 'raised facts' in this matter include the following:

The Applicant suffers from alcohol abuse or dependence arising from his service in Vietnam in 1967;
It was common for the Applicant to drink and drive despite Mrs Williams' advice to him not to drink and drive;
The Applicant suffers from an inadequate personality which is accepted as being related to his war-service;
The Applicant had been at the RSL club during the afternoon and early evening on the day of his motor vehicle accident;
His blood alcohol level was .125 after the accident, which is two and a half times larger than the amount permitted by law. He was subsequently convicted of driving with a blood alcohol level above the prescribed minimum. His insurance company refused to indemnify him for the loss of his vehicle because of his blood alcohol level. The Applicant had probably consumed 5 or 6 schooners of beer between the hours of 3 pm and 8 pm on the day in question.

The abovementioned 'facts' point to the Applicant's alcohol consumption on the day of his accident as a reasonable hypothesis of the cause of the car accident.
Once the reasonable hypothesis is raised, the question is then whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. Applying Byrnes (supra) at 571, this can occur in two ways; either the facts used to support the hypothesis are disproved beyond reasonable doubt, or a further fact arises that is inconsistent with the hypothesis, and this fact is proved beyond reasonable doubt. In the matter now before the Tribunal neither the facts supporting the hypothesis have been disproved nor are there any other facts raised that are inconsistent with the facts raised in the hypothesis. The only other fact raised is in Dr Cole's evidence that after the Applicant's accident and in the context of his defective and "patchy" memory he made a vague reference to cattle in the context of the accident. Even if the presence of cattle on the road when the Applicant was driving his vehicle had a role in his accident, this does not mean that the cattle caused the accident rather than his high level of alcohol. Indeed, because of his drinking he was probably less able to take the necessary evasive action.
In Lowerson v Repatriation Commission (1994) 33 ALD 385 which was determined by the Full Court of the Federal Court, the Veteran suffered from war-caused alcoholism and there was evidence that he commonly drank heavily on Friday nights and then drove at dangerous speeds. He died when he was thrown from his car after it hit a median strip on a clear highway at 2.20 am on a Saturday morning. The Full Court determined that his death was war-caused and held that under s 120(3) the material must simply be capable of pointing to or permitting the inference, in a non-technical sense, of facts supporting a hypothesis which is reasonable if the facts are assumed to be true. The Court held in Lowerson that it was not possible for the Tribunal to be satisfied beyond reasonable doubt that the veteran was not drunk at the time of the accident. Notwithstanding that there was no recorded blood alcohol level in Lowerson, the facts in Lowerson are otherwise on all fours with the matter now before the Tribunal.

A reasonable hypothesis has been raised which has not been disproved beyond reasonable doubt, that the Applicant has suffered organic brain damage when he was involved in a motor vehicle accident which was attributable to alcohol abuse, being an accepted war-caused disability. Thus the Applicant satisfies s 9(1)(b) of the Act.
The question remains, however, whether s 9(4) applies in this case. Pursuant to s 120(4) the Tribunal has to be satisfied to a reasonable satisfaction that a serious default or wilful act has occurred. The Tribunal notes, in passing, that although this matter is on all fours with Lowerson the issue of s 9(4) was not raised in that matter.
In McPherson the veteran had failed to disclose a medical condition at the time of his enlistment. At issue was whether s 9(6) of the Act applied. That section deprives a person of the right to receive a pension if the aggravation of the condition "resulted from the veteran's serious default or wilful act". The words "serious default or wilful act" are the same as in s 9(4), at issue in the matter now before the Tribunal. At 279 Morling J stated that "serious" only qualifies the word "default" not "wilful act". Then, at 280, he said –
… in the context of the Act "wilful act" connotes conduct which is blameworthy and deserving of serious censure. The effect of depriving a veteran of a pension to which he is otherwise entitled is to penalise him severely. The legislature cannot have intended that such a severe penalty should be visited upon a veteran in the absence of conduct warranting severe condemnation.
In Ferriday, Lee J at 525 interpreted Morley J in McPherson, with approval, to be saying "wilful act referred to in the expression 'serious default or wilful act' is to be taken to be serious misconduct that warrants severe condemnation".
In Repatriation Commission v Levi (1994) 61 FCR 189 Einfield J also agreed with Morley J's interpretation of the words "serious default or wilful act" and applied that interpretation to s 9(3). In Levi, the Veteran, acting under orders, killed an unarmed wounded pregnant nurse in Vietnam. He started using Heroin while in Vietnam and on return to Australia he developed a heroin habit and a depressive condition. In relation to Mr Levi's heroin addiction, Einfield J at 204 said; "… the concession (by the Commission) that the (heroin) addiction was war-caused either excludes a finding that it was self-caused, or so affects the situation that it should not be accepted as a statutory disentitlement to a pension". He said at 199 –
As I read the Act, the parliament intended by section 9(3) to exclude from entitlement to a pension those service personnel who were in a serious or significant way the deliberate creators or knowing authors of their own injuries or diseases; people who contracted their conditions while quite outside their proper functions and activities as members of the Australian armed services; people who brought upon themselves their injuries or diseases by acting in such manifest disregard of their duties as service personnel as to take themselves outside an entitlement to compensation at the hands of Australian taxpayers for injurious events in their war service. On the facts found and evidence accepted by the Tribunal relating to the killing of the nurse, this veteran's circumstances did not in my opinion place him within any such category.
In considering the abovementioned Federal Court decisions, the Tribunal finds that the Applicant's driving with a blood alcohol of .125 was not a serious default, notwithstanding that it is against the law. He has broken the law and has been fined accordingly. He was disqualified from receiving insurance for his wrecked vehicle because he acted contrary to a condition of the insurance policy. The Applicant has already been subject to two penalties specifically aimed at a person who drives with a blood alcohol level that exceeds the legal limit. Despite these penalties, the Tribunal must consider the totality of the evidence when deciding whether his action was a serious default. He was not "acting in such manifest disregard" of his own safety when he drove the vehicle. He had obviously done it many times before in similar circumstances, and had arrived home safely. The Tribunal is not reasonably satisfied that the Applicant's act of driving his vehicle with a blood alcohol level of .125 was a "wilful act" to cause his accident. His act was not materially different from that of a heavy drinker who keeps drinking after he has been told to stop for the sake of his health. In the latter case one would not say that the person has made a "wilful act" to cause a subsequent heart attack or liver damage or a whole range of other similarly serious health problems. The fact that the Applicant's drinking probably caused his accident and organic brain damage is not such, in the Tribunal's view, that it can be held to be a "serious default or wilful act" for the purposes of s 9(4) of the Act. Using the words of Morling J in McPherson "the legislature cannot have intended that such a severe penalty should be visited upon a veteran in the absence of conduct warranting severe condemnation". The context of the Tribunal's decision is that the Applicant has a "war-caused" drinking problem and a "war-caused" inadequate personality. As such, because of his war-caused conditions, he was very vulnerable to driving with a blood alcohol level above the minimum legal limit, and he was also very vulnerable to having an accident, notwithstanding that he did not have an accident until 1982 despite regularly driving after he had been drinking to excess.
For these reasons, the Tribunal will set aside the decision under review and determine that the Applicant's organic brain damage is a war-caused condition. As all applications for review are in time, the earliest effective date for the payment of pension in respect of this condition is 4 September 1996. The Respondent conceded at the commencement of the hearing that if the Tribunal found that the Applicant's condition of organic brain damage was war-caused then he would qualify for payment at the Special Rate, pursuant to s 24 of the Act. The Tribunal finds that this concession was properly made. The Applicant is entitled to payment of pension at the Special Rate, with effect from 4 September 1996.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Rear Admiral A. R. Horton, Member.
Signed:         .....................................................................................
Associate
Date/s of Hearing  20 August 1999
Date of Decision  7 April 2000
Solicitor for Applicant               Mr N Dawson
  R.L. Whyburn & Associates
Advocate for Respondent       Mr J Sylvester,
  Department of Veterans' Affairs

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Citations

Williams and Repatriation Commission [2000] AATA 272

Cases Citing This Decision

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Cases Cited

6

Statutory Material Cited

0

Budworth v Repatriation Commission [2001] FCA 317

Ferriday v Repatriation Commission [1996] FCA 827

Roscoe v Repatriation Commission [2003] FCA 1568