Taylor and Repatriation Commission [2000] AATA 659 (4 August 2000)

Last Updated: 28 August 2000

DECISION AND REASONS FOR DECISION [2000] AATA 659

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/1084

VETERANS' AFFAIRS DIVISION )

Re Joan TAYLOR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member Dr P Fricker, Member

Date 4 August 2000

Place Melbourne

Decision The Tribunal affirms the decision under review.

(Sgnd) Joan Dwyer

Senior Member

VETERANS AFFAIRS - whether suicide of veteran war-caused - reference to suicide Statement of Principles (SoP) and to SoPs as to factors raised in that SoP - whether veteran suffered from war-caused depressive disorder - whether veteran suffered from alcohol abuse related to service - whether permissible to consider whether veteran suffered depression which was service related but does not meet any factor in depressive disorder SoP - decision affirmed

WORDS AND PHRASES - "severe psychosocial stressor or stressors" "stressful event"

The Acts Interpretation Act 1901 ss 8, 46, 48(2) and 50

Veterans' Entitlements Act 1986

Ogston v Repatriation Commission (1999) 29 AAR 89

Keeley v Repatriation Commission (1999) 56 ALD 455

Repatriation Commission v Cooke , Federal Court, 23 December 1998 1717/1998

McKenna v Repatriation Commission a (1999) 29 AAR 70

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission [2000] FCA 873

Re Clarke and Repatriation Commission, [2000] AATA 545

REASONS FOR DECISION

4 August 2000 Mrs Joan Dwyer, Senior Member

Mr A Argent, Member

Dr P Fricker, Member

1. This is an application for review of a decision of the Repatriation Commission ("the Commission"), made 25 August 1997 and affirmed by the Veterans' Review Board ("the VRB") on 20 August 1998, which decided that the death of the veteran, Peter Francis Taylor, was not war-caused within the meaning of that term in s 8 of the Veterans' Entitlements Act 1986 ("the Act").

2. Mr Croyle of Counsel appeared for the applicant, Mrs Taylor. Mr D Phillips, on the first day of hearing, and Mr K Herman on the resumed hearing, advocates with the Department of Veterans' Affairs, appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and also the exhibits tendered during the hearing. Mrs Taylor gave evidence. Evidence on her behalf was also given by her son, Philip Taylor and by Dr Lewis and Dr Cole who are psychiatrists. The respondent called Dr Kenny, a psychiatrist.

3. Mr Taylor enlisted in the Royal Australian Navy Reserve ("RANR") on 11 July 1945 at the age of 19 years and ten months for a period of three years or duration of war and six months thereafter, whichever was to be the longer. After being borne on the books of a number of shore stations, he sailed as an Able Bodied Seaman in the cruiser, HMAS Shropshire, to the United Kingdom. This was in March 1946, seven months after the cessation of hostilities against Japan and 10 months after the surrender of Germany. Shropshire sailed to the United Kingdom with the Australian Victory Contingent and also for a refit. The service records show that during service Mr Taylor was shore-based in Australia at all times, except for service in HMAS Shropshire from 19 March 1946 to 16 November 1946. Mr Taylor returned to Australia seven months later in late October 1946 and for the next nine months served ashore in base establishments in Sydney. He was discharged medically fit after just two years service in the RANR on 18 July 1947. The whole of Mr Taylor's period of service constitutes operational service as defined in the Act. Thus the applicable standard of proof is that set out in s 120(1) and (3) of the Act.

4. Mr Taylor died on 15 March 1988 at Echuca. The cause of death was suicide. Mr Taylor was a veterinarian. The coroner found that he had died as a result of a self-administered injection of Diethylthiambutene.

5. The parties agreed that Mrs Taylor lodged her claim for widow's pension on 20 March 1996. The claim was refused by the Commission on 25 August 1997. The respondent submitted that the question whether or not Mr Taylor's death was war-caused must be determined in accordance with the relevant Statement of Principles ("SoP") for suicide.

6. Mr Croyle, at the first day of hearing, raised a question whether the SoP should be applied in a case such as this, where there was no relevant SoP at the date of claim. That issue was decided by the Full Court of the Federal Court in Ogston v Repatriation Commission (1999) 29 AAR 89. The Full Court there held that the applicant who was claiming that her husband's death was war-caused did not have a right to have her claim decided according to the law as it existed when the claim was made. Between that date and the date of decision a SoP had been introduced which did not allow for her claim to be upheld. The Full Court said that the modification of the operation of s 120 of the Act effected by s 120A applied to all claims made on or after 1 June 1994 as provided for in s 120A(1). Section 120A(3) provides for issues of causation to be decided in accordance with SoP's. The Full Court in Ogston rejected the applicant's argument, based on ss 8, 46, 48(2) and 50 of the Acts Interpretation Act 1901. It held that the operation of the relevant sections of the Acts Interpretation Act was "subject to any contrary intention shown in the legislation", and that s 120A(1) showed an unambiguous intention. Accordingly this matter must be determined in accordance with the relevant SoP for Suicide or Attempted Suicide.

7. In Keeley v Repatriation Commission (1999) 56 ALD 455 Heerey J held that the relevant SoP is that which was in force at the time of the original decision. That decision was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532. In this matter the original rejection of Mrs Taylor's claim was on 25 August 1997. Accordingly the SoPs to be applied are those in force on that date. They are as follows:

SUICIDE - Instrument No 71 of 1996 as amended by Instrument No 177 of 1996 ("the Suicide SoP")

DEPRESSIVE DISORDER - Instrument No 65 of 1996 as amended by No 181 of 1996 ("the Depressive Disorder SoP")

PSYCHOACTIVE SUBSTANCE ABUSE OR DEPENDENCE - Instrument No 5 of 1994 ("the Alcohol Abuse SoP")

8. The Suicide SoP sets out in paragraph 5 a number of factors at least one of which must be related to relevant service rendered by the person. The factors relied on by the applicant as set out in the applicant's Statement of Facts and Contentions, are factors (b), (c) and (d), which provide as follows:

(b) suffering from depression at the time of suicide or attempted suicide; or

(c) suffering from post traumatic stress disorder at the time of suicide or attempted suicide; or

(d) suffering from psychoactive substance abuse or dependence involving alcohol at the time of suicide or attempted suicide; or

9. The Suicide SoP defines the three conditions of "depression", "post-traumatic stress disorder" and "psychoactive substance abuse or dependence involving alcohol". It also provides in paragraph 4 that at least one of the factors in paragraph 5 must be related to relevant service.

10. The task for the Tribunal is therefore to consider whether Mr Taylor at the time of his suicide was suffering from depression, post-traumatic stress disorder ("PTSD") or psychoactive substance abuse or dependence involving alcohol ("alcohol abuse") which was related to relevant service.

11. Two legal issues arise in relation to that task. First there is a question as to diagnosis. Secondly there is an issue as to the applicability of the SoPs in deciding whether depression, PTSD or substance abuse are related to service.

12. The Full Court of the Federal Court in Repatriation Commission v Cooke, 23 December 1998, 1717/1998, explained that whether a disease exists, is to be established on the balance of probabilities, even where a veteran had operational service. However the Full Court in Cooke expressly stated that where the matter for determination was whether a veteran's death was war-caused the reasonable hypothesis standard of proof applied to the issue of diagnosis. That point was conceded by the Repatriation Commission at the hearing.

13. In fact nothing turned on that issue because there was agreement between the psychiatrists that at the time of his death Mr Taylor was suffering from a depressive disorder. Dr Lewis stated as a treating doctor, and Dr Cole and Dr Kenny agreed on the history, that Mr Taylor was also suffering from longstanding alcohol abuse. Mr Croyle conceded that the applicant could not succeed in establishing that Mr Taylor suffered from PTSD. In view of the evidence as to the nature of Mr Taylor's service that seems an appropriate concession.

14. The Federal Court said in McKenna v Repatriation Commission and McKenna (1999) 29 AAR 70 that any condition relied on as a factor in establishing that another condition or a death is war-caused, must itself be found to be war-caused in accordance with the SoP relating to that intermediate condition. The Full Court said at p77:

Since the Authority had determined Statements of Principles in respect of the kinds of diseases suffered by Mr McKenna (s 120A(4)(b)), the next step which the Tribunal was required to take was to form an opinion whether the hypotheses pointed to by the material before the Tribunal were reasonable. It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant Statements of Principles. In our view, for either of the hypotheses to be upheld by a Statement of Principles, as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. A complex hypothesis (ie one comprising more than one element or part) can be no stronger than each of its elements or parts.

We must turn therefore to the SoPs on depression and alcohol abuse, to consider whether Mr Taylor's depression and alcohol abuse were related to service, as required by paragraph 4 of the Suicide SoP.

15. Dr Lewis (who was then not a qualified psychiatrist) was a treating doctor from 1981 to 1988. She was a Senior Medical Officer and reviewed Mr Taylor at Echuca Outpatients every two months. She continued contact during periods of hospitalisation. The Tribunal received two reports from Dr Lewis (A5 and A6). In her first report of 7 April 1999, Dr Lewis wrote that Mr Taylor's diagnosis under DSM IV was Major Depressive Disorder, recurrent with Psychotic Features. Dr Cole in his report of 13 January 1999 (A3) diagnosed recurrent major depression. Dr Kenny in his report of 28 June 1999 (R6) diagnosed unipolar affective disorder or bipolar affective disorder but he also wrote, "He clearly had repeated episodes of depression." He described Mr Taylor as suffering from endogenous depression.

16. Dr Kenny gave considerable weight to diagnoses of manic depression in hospital files. Dr Lewis and Dr Cole wrote and said in evidence that they had referred to those files and had not found evidence that Mr Taylor had ever been manic, and had found only one reference to a "slightly hypomanic state" in a letter from Dr Ericksen dated 11 December 1987 to Dr Moysey (see A3 and A6). There is clear evidence that Mr Taylor at the time of his death suffered from a Major Depressive Disorder.

17. Dr Lewis said that Mr Taylor's Major Depressive Disorder met the definition of depressive disorder in paragraph 2 of the Depressive Disorder SoP. We accept that opinion.

18. The factors that must be related to service are set out in paragraph 5 of the Depressive Disorder SoP. The relevant factors are (b) and (c) which provide as follows:

(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

(c) having a psychiatric condition within the two years immediately before the clinical onset of depressive disorder . . .

(b) Experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder

19. The Depressive Disorder SoP defines a "severe psychosocial stressor". A new definition was substituted by Instrument No. 181 of 1996 dated 9 December 1996. It is applicable in this matter. It provides:

'severe psychosocial stressor' means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.

20. It was submitted by Mr Croyle (at trans. p143) that there were "raised facts which identify that Mr Taylor experienced a stressful event" or events during service. He relied on Repatriation Commission v Deledio (1998) 49 ALD 193 as establishing that all that is required at this stage is the raising of facts capable of raising a reasonable hypothesis in accordance with the template in the SoP.

21. The Full Court said in Deledio at p206:

1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). . . .

3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

22. Thus the first stage is to consider whether there is material before the Tribunal pointing to a hypothesis connecting depressive disorder with the circumstances of Mr Taylor's service. Mr Croyle, recognising the need to comply with the relevant SoP, submitted that there was such material. He said, at trans. p143:

[T]he evidence for example of Dr Cole and as I understand the evidence of Dr Lewis would support that the stress experienced by the deceased during his war service satisfied that definition and therefore factor (a) in paragraph 1 of the psycho-active substance abuse SoP would be satisfied.

23. Mr Croyle did not specify the particular material in the evidence of Dr Cole and Dr Lewis which he submitted raised the relevant facts namely the experiencing of a "severe psychosocial stressor" as defined in the SoP within the two years immediately before the clinical onset of the depressive disorder.

24. The Federal Court in Harris v Repatriation Commission [2000] FCA 873 has emphasised that the raised facts must raise precisely the factor specified in the SoP. Section 120(3) of the Act requires that we consider whether the whole of the material before the Tribunal raises the fact of Mr Taylor experiencing "a severe psychosocial stressor", namely:

an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;

25. The material before the Tribunal includes the statement and evidence of Mr Phillip Taylor as to the description his father gave him of his service. That description includes "setting sail on the "Shropshire" during a time of heavy action", and sailing "on an antiquated vessel heading towards a hot spot", and sailing when "there were still hostile submarines and mines en route". Another incident mentioned by Mr Taylor was when his father was "wrongly accused of theft". However in his evidence Mr Taylor acknowledged that, given that Japan and Germany had both surrendered in 1945, the risk of the ship being hit or sustaining damage from enemy action was "almost zero" (trans. p68). Mr Taylor also agreed that his father did not actually see enemy action. He said that the impression he obtained from what his father said was obviously incorrect.

26. Similarly Dr Lewis in her report of 7 April 1999 (A5) had a history of Mr Taylor's service that was obviously not accurate. She wrote:

Alcohol also blocked out the fear for his own safety and the horror of inflicting death and suffering upon others whilst in the Navy. I understood from Peter, and from his family's written accounts, that Peter was not involved in active fighting. However, he was involved in mine sweeping exercises and one of the ships on which he served was directed for refitting for combat duties prior to cessation of war.

Peter did acknowledge a sense of alienation from his peers in the Navy and a sense of disconnection from most people, other than his family, throughout his lifetime. He once verbalised a sense of shame for fearing for his own life. More traumatic was his fear of inflicting harm on others, which also endured for a lifetime and extended to all forms of life. Peter felt guilty for being a part of the war.

27. When Dr Lewis gave evidence the precise dates and postings of Mr Taylor's service were explained to her. She no longer suggested that Mr Taylor had "fear for his own life" or "horror of inflicting death and suffering on others". She said (trans. p116) that "memories may have become distorted" in Mr Taylor's head because he got really depressed. She did however refer, as had Mr Phillip Taylor, to Mr Taylor's difficulty socialising with the men with whom he was serving. Dr Lewis wrote in her report (A5) and said in evidence that he saw himself as "a square peg in a round hole".

28. By the conclusion of the evidence no facts were raised on the whole of the material as to Mr Taylor being in any fear of enemy action or having any feelings of horror at having to inflict death or injury on others. There was material raising the facts of Mr Taylor not fitting in well with other men, being upset about a couple of incidents, one when he was accused of taking supplies from the quarter-master's store, and one where people laughed at him when a ladder slipped while he was painting the outside of a ship. He also resented what he saw of Naval discipline even when it was directed towards others.

29. It is our view the whole of the material before the Tribunal does not raise a hypothesis of Mr Taylor experiencing "a severe psychosocial stressor" or stressors within the meaning of the definition in the SoP. There is nothing which equates to the examples in the definition. There is no actual occurrence which evoked feelings of substantial distress in Mr Taylor of the order of "being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems". The facts of feeling uncomfortable being in the Navy, and having a sense of isolation or alienation from his peers are not similar to the sort of occurrences described in the definition.

30. Mr Phillip Taylor's evidence about his father feeling victimised at an accusation of theft of items he had not taken is an identifiable occurrence that could well have evoked some distress. Similarly the incident with the ladder may well have evoked distress. But the raised facts do not indicate that those incidents evoked "substantial distress" such as would be evoked by the other examples in the definition. We note that the definition does include "legal problems" but there is no material before us suggesting that Naval disciplinary action similar to "legal problems" was taken against Mr Taylor in respect of the alleged theft.

31. As we have found that the material before the Tribunal does not raise a reasonable hypothesis of Mr Taylor experiencing "a severe psychosocial stressor" as defined, there is no material raising or pointing to any severe psychosocial stressor occurring within the two years immediately before the clinical onset of depressive disorder.

32. We conclude that the whole of the material before us does not raise a reasonable hypothesis such as to satisfy factor (b) of the Depressive Disorder SoP.

(c) Having a psychiatric condition within the two years immediately before the clinical onset of depressive disorder

33. The evidence establishes that Mr Taylor was suffering from alcohol abuse from some time after the family moved to Echuca in 1959. Mr Phillip Taylor described positive early memories of his father being a great role model and very optimistic when he first went to Echuca. After the first few years he began to notice a strong smell of alcohol when his father said goodnight. He said something had changed. He described his father after that as emotional, crying and drinking and remembered there being constant arguments between his parents. Mrs Taylor said that her husband did not drink a lot until after they moved to Echuca (trans. p33):

Then when we came back to Echuca, he did start drinking quite heavily. After work he'd go into the hotels and he'd stay, you know, on until two and three o'clock in the morning, get into some rather heated arguments about all sorts of things, mainly about his idea of what war was about and the war at Korea, he was very upset about that. He was upset about all wars, about how it used to affect what he'd call the little people.

34. Dr Cole said in evidence that alcohol abuse is a psychiatric condition. That is the conclusion the Tribunal reached in Re Clarke and Repatriation Commission, [2000] AATA 545 (see paragraphs 38-41). If the clinical onset of depressive disorder was in 1966 (R1 p58), or 1968 (R1 p129), or 1970 (R1 p34), or 1971 (A5), there is material raising or pointing to Mr Taylor suffering from alcohol abuse during the two years preceding the clinical onset of the depressive disorder.

35. However as specified in paragraph 4 of the Suicide SoP it is necessary that that alcohol abuse be related to relevant service rendered by Mr Taylor. That requires us to turn to the SoP on alcohol abuse. As already stated in paragraph 8 of these reasons that SoP is Instrument No 5 of 1994.

36. The alcohol abuse SoP, in clause 1, sets out the factors indicating that alcohol abuse and death from alcohol abuse or dependence can be related to operational service. The only relevant factor is paragraph (a):

(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service

37. That factor requires facts raising the hypothesis that the veteran experienced "a stressful event", as defined in the SoP, prior to the clinical onset of alcohol abuse. and the maintenance of the habit of alcohol abuse post-service. The definition of stressful event in the relevant SoP is as follows:

"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.

38. The material referred to in paragraph 28 of these reasons, such as being upset about Naval discipline and feeling a bit of a loner amongst the other sailors serving in HMAS Shropshire, and being unjustly accused of theft, and being laughed at when the ladder slipped does raise facts capable of satisfying the requirement of incidents constituting external stimuli that resulted in psychological stress. There is a question as to the significance of the words "such as combat" in brackets in the definition. However there is a more significant difficulty.

39. The fact that the SoP requires that the alcohol abuse be maintained post-service seems to imply that it commenced during service and was maintained thereafter. The material before the Tribunal does not raise or point to that situation. The whole of the material before the Tribunal is that after discharge, until pressures developed while Mr and Mrs Taylor were living in Echuca, Mr Taylor had a "normal" social drinking habit.

40. Mrs Taylor gave evidence of her knowledge of Mr Taylor's drinking habits prior to their marriage. She said they met at a dance in Berrima in 1947 before his discharge. Mr Taylor came to Berrima from Watson's Bay to stay with his parents on leave each weekend. Mrs Taylor said that he drank wine with one of his mates on the two hour train journey from Sydney to Berrima and made sure he had some when he went back on the train. He and his mates drank at the dance they attended. Mrs Taylor said she did not take any notice as she thought it was the norm. In cross-examination (trans. p44), Mrs Taylor commented on his behaviour at dances during that time, "He was not exactly sober but not abusive ... just happy, I suppose." Asked if he was extremely intoxicated she replied, "No."

41. When referring to the years immediately following her husband's discharge, during the early part of their marriage, Mrs Thompson described her husband as being very academic, obtaining honours and then becoming a lecturer. She said that while he was studying (trans. p44):

He'd have a couple of beers on his way home usually, but we didn't have very much money to spend on alcohol and we had, you know, to live in Sydney and I can remember going to grocers and things and saying, you know, I've got so much for this or so much for that and so much for something else. I wasn't able to run up an account, so he didn't have the money to do it, but he also knew he had to get through the university course and study was important.

42. Mrs Thompson said that after Mr Thompson graduated, he worked as a government employed vet at Oatlands in Tasmania, and then in private practice at Skipton in Victoria. During that time he did not drink a lot as there was not much money.

43. The Tribunal asked Mrs Taylor whether she would agree with a history obtained by Dr Percival. He seems to have been a treating doctor when Mr Taylor was at Ambermere Psychiatric Centre in Bendigo, and he also saw Mr Taylor at Outpatients in Echuca. Dr Percival wrote (R1 p125):

I have also conducted a lengthy interview with Mrs. Taylor on the question of Mr. Taylor's use of alcohol. It seems that he was originally a light social drinker, but has tended to drink rather more since he arrived in Echuca some eighteen years ago. However his use of alcohol does not seem to have created any major social problems previously, and has been intermittent with long periods of normal limited drinking in between heavier bouts. Since his discharge from Ambermere Psychiatric Centre his drinking has been quite markedly reduced, except for the one occasion which is the subject of the charges now laid against him.

44. Mrs Taylor did not remember having seen Dr Percival, but when Mr Phillips read her that passage from his report she agreed that before Echuca Mr Taylor was a light social drinker. Mrs Taylor replied (trans. p53):

I agree with that, yes. He'd have some drinks before, but not like he did when he went to Echuca.

45. There is material pointing to Mr Taylor drinking whilst in the Navy and feeling that alcohol helped him to fit in. On social occasions, whilst on leave, in early 1947, he appeared affected by alcohol without exhibiting any antisocial behaviour. There was no material before the Tribunal as to his habits when on shore bases or at sea, but there was evidence before us that the alcohol ration was limited to between two and five and a half bottles of beer a week. Dr Lewis said that she regards using alcohol to bolster confidence as alcohol abuse in one sense. We do not accept that the use of alcohol as a social lubricant indicates alcohol abuse within the meaning given that term in the suicide and alcohol abuse SoPs.

46. The evidence of Mrs Taylor and Mr Philip Taylor, whatever Mr Taylor's alcohol intake had been in the Navy, does not raise or point to Mr Taylor having the clinical onset of alcohol abuse as defined in the alcohol abuse SoP during service, nor does it point to alcohol abuse being maintained post service. There is no suggestion on the material of alcohol abuse in the years between 1947 and the early 60's. There is no material pointing to any aspect of Mr Taylor's drinking demonstrating any features of alcohol abuse during that period. Thus there is no material raising or pointing to Mr Taylor having a psychiatric condition, namely alcohol abuse, which is related to service as required by the relevant SoP, so as to raise the hypothesis that his death by suicide was war-caused.

Depression satisfying factor 5(b) in the Suicide SoP which does not satisfy the Depressive Disorder SoP

47. Mr Croyle submitted at the start of the second day of hearing that the Tribunal, in looking at factor (b) in the Suicide SoP, was not restricted to depression as defined in the Suicide SoP. We reject that submission as we consider that the fact that the term "depression" is defined in the Suicide SoP does indicate that it is to be given its defined meaning when applying that SoP. In any event the definition in the SoP i.e. "any psychiatric disorder with depressive features" is wide enough to cover any disease which could properly be diagnosed as depression.

48. Mr Croyle submitted that a veteran could be suffering from depression as defined in the suicide SoP, which did not fit within the definition of depressive disorder in the Depressive Disorder SoP. In that situation he submitted the Tribunal could find depression to be service related if the material raised a reasonable hypothesis to that effect, without any requirement of consistency with the SoP.

49. On the evidence Mr Taylor's depression did meet the definition in the Depressive Disorder SoP. Mr Croyle, at trans. p85, submitted that if we were looking at "depression" as defined in the Suicide SoP which did not fit within the definition of depressive disorder in the Depressive Disorder SoP "as a matter of statutory interpretation it is not a McKenna situation". We doubt that that is so, but there was no material before us which raised that issue. All the evidence was that Mr Taylor's diagnosed depression did meet the definition in the Depressive Disorder SoP, but, as already discussed, the material did not raise a hypothesis consistent with the relevant SoP.

50. Mr Croyle submitted that the Tribunal should find that there was material raising the hypothesis that Mr Taylor was suffering from depression related to service during his service, even though it did not meet any factor in the Depressive Disorder SoP. We are not satisfied that in such a situation it would be permissible for us to consider whether such depression was related to service without reference to the depressive disorder SoP.

51. We find that the material before the Tribunal does not raise the hypothesis that Mr Taylor's death by suicide was war-caused.

52. The decision under review will be affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr A Argent, Member and Dr P Fricker, Member

Signed: Anne O'Rourke

Associate

Date/s of Hearing 26 August 1999 and 4 July 2000

Date of Decision 4 August 2000

Counsel for the Applicant Mr M Croyle

Solicitor for the Applicant Williams Winter Higgs

Counsel for the Respondent Nil

Solicitor for the Respondent Nil

Departmental Advocates Mr D Phillips and Mr K Herman