Fogarty and Repatriation Commission [2000] AATA 739 (24 August 2000)

Last Updated: 28 August 2000

DECISION AND REASONS FOR DECISION [2000] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1153

VETERANS' APPEALS DIVISION )

Re WILLIAM FRANCIS FOGARTY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Associate Professor J. Maynard, Member

Date 24 August 2000

Place Melbourne

Decision The Tribunal affirms the decision under review.

(Sgd.) B.G. GIBBS

Senior Member

CATCHWORDS

VETERANS' APPEALS - Entitlement - Ischaemic heart disease - psychoactive substance abuse or dependence - generalised anxiety disorder - naval service - stress - alcohol consumption - passive smoking - whether hypertension - decision affirmed.

Words and Phrases - "Hypertension", "Ischaemic Heart Disease", "Generalised Anxiety Disorder", "Stressful event", "Psychoactive substance abuse or dependence".

Veterans' Entitlements Act 1986, ss. 9, 120A, 126, 196B

Statement of Principles Instrument Nos. 85 of 1995 (Ischaemic Heart Disease); 48 of 1994 (Generalised Anxiety Disorder); 83 of 1995 (Hypertension); 5 of 1994 (Psychoactive Substance Abuse or Dependence)

East v Repatriation Commission (1987) 16 FCR 517

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Bey (1997) 149 ALR 721

Repatriation Commission v Deledio (1998) 49 ALD 1993

Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999

REASONS FOR DECISION

24 August 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Associate Professor J. Maynard, Member

Introduction

1. This is an application by Mr William Francis Fogarty, for review of the decision of the respondent dated 4 October 1995, affirmed by the Veterans' Review Board ("VRB") on 7 September 1998, that ischaemic heart disease ("IHD") and generalised anxiety disorder ("GAD") are not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").

Representation

2. At the hearing before this Tribunal Mr Fogarty was represented by his solicitor Mr D. De Marchi. Ms T. Chant, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.

Material

3. The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also received in evidence during the hearing.

Witnesses

4. During the hearing evidence was given by:

* Mr Fogarty;

* Dr E.S. Cole; and

* Dr B.M. Kenny

5. Dr Cole and Dr Kenny are Consulting Psychiatrists.

Facts Not In Dispute

6. A number of facts relevant to this matter are not in dispute:

* Mr Fogarty was born on 1 June 1922;

* He served in the Royal Australian Navy from 30 September 1940 to 4 January 1946;

* His period of service in the Navy constitutes "eligible war service" as defined in the Act;

* Because Mr Fogarty served in HMA ships in South-West Pacific waters, the whole of his service also constitutes "operational service" as defined in the Act;

* Mr Fogarty has the following disabilities accepted as war-caused:

* Left Antritis

* Chronic Bronchitis

* Sleep Apnoea

* He is currently in receipt of pension at 80 per cent of the General Rate.

Issues

7. The issues before the Tribunal are:

(a) Whether IHD and GAD are war-caused within the meaning of section 9 of the Act;

(b) In the event of the Tribunal determining that either or both disabilities are war-caused, what is the appropriate rate of pension?

Contentions - Applicant

8. It is Mr Fogarty's contention that IHD and GAD are war-caused and that, as a consequence of the acceptance of those disabilities, he would be eligible for the Extreme Disablement Adjustment ("EDA") to his General Rate pension, pursuant to section 22 of the Act.

Standard of proof

9. The standard of proof in determining the issue of causation in respect of Mr Fogarty's service is that which is provided in subsections 120(1) and 120(3) of the Act. Those subsections state as follows:

"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 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 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.

(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 a 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) that the death was war-caused or defence-caused;

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, disease or death with the circumstances of the particular service rendered by the person."

Application of Subsections 120(1) and 120(3) of the Act - Methodology

10. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:

"The position may be summarised 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 in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) 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."

11. In order for the material before the Tribunal to raise a reasonable hypothesis, that material must point to the hypothesis. It is not sufficient that the material raise a mere possibility. The Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 considered what is meant by the requirement in section 120(3) of the Act that "the material raise a reasonable hypothesis". The Court in Bey referred to the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 and to the decisions of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and in Brynes (supra) and said at p.730:

"This court restates the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

Statement of Principles ("SoP")

12. Section 120A(1) of the Act, to which reference is made in the Note to section 120(1), provides that it applies to claims made on or after 1 June 1994. As Mr Fogarty's relevant claim was made after that date, section 120A is applicable. Subsection 120A(3) states as follows:

"(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis."

13. Pursuant to subsection 196B(2) of the Act, where the Repatriation Medical Authority ("RMA") is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service, the RMA must determine a Statement of Principles ("SoP") in respect of that kind of injury, disease or death, setting out:

The factors that must as a minimum exist; and

Which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

14. Subsection 196B(14) relevantly states as follows:

"(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a) it resulted from an occurrence that happened while the person was rendering that service; or

(b) it arose out of, or was attributable to, that service; or

(c) ...

(d) it was contributed to in a material degree by, or was aggravated by, that service; or

(e) ...

(f) in the case of a factor causing, or contributing to, a disease - it would not have occurred:

(i) but for the rendering of that service by the person; or

(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or

(g) ..."

Relevant SoP's

15. As observed by the parties, this matter is affected by the decision of the Full Federal Court in Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999.

16. While the respondent views Keeley as being wrong in law and has applied for special leave to appeal to the High Court, it acknowledges that under the Full Federal Court's decision these proceedings are governed by the SoP in force at the time of the original decision. Therefore the relevant SoP's in this matter are:

* Instrument No. 85 of 1995, concerning IHD;

* Instrument No. 48 of 1994, concerning GAD;

* Instrument No. 83 of 1995, concerning Hypertension; and

* Instrument No. 5 of 1994, concerning Psychoactive Substance Abuse or Dependence.

17. In accordance with subsection 196B(2) of the Act, the abovementioned SoP's set out the factors that must, as a minimum exist before it can be said that a reasonable hypothesis has been raised, connecting the claimed disabilities with the circumstances of a person's relevant service. At least one of the factors set out in the respective SoP's, must be related to any relevant service rendered by the person.

Factors Relied Upon

18. The factors upon which Mr Fogarty relies are as follows:

* SoP No. 85 of 1995 Factor 1(a):

(IHD) "the presence of hypertension before the clinical onset of ischaemic heart disease."

* SoP No. 48 of 1994 Factor 1(b):

(GAD) "experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder."

* SoP No. 83 of 1995 Factor 1(b):

(Hypertension) "suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension."

* SoP No. 5 of 1994 Factor 1(a):

(Psychoactive "experiencing a stressful event prior to the clinical

Substance Abuse onset of psychoactive substance abuse or

or Dependence) dependence, and maintaining the abuse or dependence post-service; or

Factor 1(b):

"having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence."

Definitions

19. The various SoP's relevant to this matter provide definitions in respect of certain words and phrases used in the factor or factors upon which Mr Fogarty relies. The definitions are as follows:

* SoP No. 85 of 1995 "Hypertension" means:

(IHD) (a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg; or

(b) where treatment for hypertension is being administered,

attracting an ICD code in the range 401 to 405.

"Ischaemic heart disease" means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen, attracting an ICD code in the range 410 to 414.

Note: coronary artery disease is the usual underlying disorder for ischaemic heart disease and this is a disease process of the coronary arterial system characterised by the formation of intimal fatty streaks, followed by inflammation and the formation of fibrous plaques.

* SoP No. 48 of 1994 "Generalised anxiety disorder" means a

(GAD) psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV):

(a) excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:

(i) the person finds difficult to control; and

(ii) which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months:

(A) restlessness or feeling keyed up or on edge;

(B) being easily fatigued;

(C) concentration difficulties or mind going blank;

(D) irritability;

(E) muscle tension;

(F) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and

(iii) the focus of which is not confined to features of an Axis I disorder, for example, it is not about:

(A) having a Panic Attack (as in Panic Disorder); or

(B) being embarrassed in public (as in Social Phobia); or

(C) being contaminated (as in Obsessive-Compulsive Disorder); or

(D) being away from home or close relatives (as in Separation Anxiety Disorder); or

(E) gaining weight (as in Anorexia Nervosa); or

(F) having multiple physical complaints (as in Somatization Disorder); or

(G) having a serious illness (as in Hypochondriasis); and

(iv) it does not occur exclusively during Post-Traumatic Stress Disorder; and

(v) either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) which is not due to the direct physiological effects of:

(i) a drug of abuse; or

(ii) a medication; or

(iii) a general medial condition (such as hyperthyroidism); and

(c) which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder."

"Stressful event" means an occurrence which evokes feelings of anxiety or stress.

* SoP No. 83 of 1995 "Accurate determination of hypertension"

(Hypertension) generally means the accurate measurement of blood pressure on a number of occasions.

"Psychoactive substance abuse or dependence" means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:

(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or

(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated).

* SoP No. 5 of 1994 "Stressful event" means an incident in which there

(Psychoactive were external stimuli (such as combat) that would

Substance Abuse or result in psychological stress, and where there

Dependence) were subjective symptoms of increased stress.

"Psychoactive substance abuse or dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:

(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or

(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated).

Concession - Respondent

20. The respondent concedes that Mr Fogarty was hypertensive before the clinical onset of IHD in 1994.

Evidence

21. Mr Fogarty rendered two written statements for the purposes of these proceedings.

22. The first statement is dated 6 August 1999 and provides a history of his consumption of alcohol and his exposure to passive smoking (Exhibit A3). The statement reads as follows:

"ALCOHOL HISTORY

1. I served in the Royal Australian Navy from 30 September 1940, to 4 January 1946. I served on board ships in South-West Pacific waters, and the whole of my service constitutes operational service.

2. I joined the Navy when I was 18 years of age, and I was never a drinker prior to joining the Navy. When I was at Cape Otway Signal Station, when contractors were building a radar station, beer was brought in and this was the first time I was introduced to beer, and I became intoxicated for the first time. I was then about 18½ years of age.

3. Later on I was on the examination vessel, S.S. Victoria. We would identify and board ships outside the 3 mile limit, this was for a fortnight at a time at sea. We would then be transferred to the depot for further instructions or relieving duties and would have access to alcohol then. I would routinely drink about 8 beers approximately every second day.

4. After discharge, I would meet friends at the hotel every Friday night, and would drink 8 or more glasses of beer per night. I would drink more on social occasions. I wanted to drink more but I was newly married and could not afford it. But I would drink more when an opportunity arose.

5. I increased my drinking a few years later when in 1957 I was drinking 4 glasses of beer per day, and this is in my records. On some occasions I would increase this quantity to 6-8 glasses of beer per day, and more on weekends and this pattern continued until 1988, when I was experiencing major health problems.

6. I was diagnosed by Dr Cass as having high blood pressure in the early 1960's and have been on hypertensive medication since this time.

7. My current Doctor is Dr Lee, and he has been treating me since 1985, including treatment for "long-standing hypertension". The condition confirmed damage to the heart area due to "long-standing hypertension" by Heart Specialist, Peter Skillington in official report of operation.

8. The conditions on board the minesweepers and destroyers were very stressful and horrendous, especially when I experienced kamikaze attacks whilst screening the aircraft carrier "Formidable", both ships were hit twice on separate occasions. I lost some friends during these attacks, although my ship experienced no direct hits, some were close. The stress was relieved by drinking alcohol with my mates when on leave.

PASSIVE SMOKING

1. I was in the Navy for over 5 years. On board destroyers, there would be 40 men in a room approximately 50 x 30 feet. This was known as the 'Mess' and we were in there 14 hours a day. We ate and slept in there, and recreation included smoking. 90% of these men smoked, there was always a smoke haze visible continually. It was not practical to open portholes at sea. The only access to the lower deck 'Mess' was through a stairway approximately 4' x 3' opening.

2. Minesweepers would sweep daybreak to sunset. The ship would lay to inside the Heads, and smoking was the main occupation prior to bedtime.

3. Most of the men smoked because cigarettes were extremely cheap, and in welfare parcels. Destroyers, in the dying weeks of the war, received a bottle of beer a man per week, supplied by the Navy."

23. The second statement is dated 11 February 2000 and provides further history in respect of Mr Fogarty's drinking history (Exhibit A2). The statement reads as follows:

"1. I served in the Royal Australian Navy from 30 September 1940, to 4 January 1946. I have rendered operational service.

2. I did not drink at all prior to service as I was involved in competitive swimming. I was called up when I was 18 years of age.

3. During my service with the Navy, I commenced drinking whenever we went ashore to relieve stress and tension, and to be "one of the boys". I became a regular drinker of alcohol and by the 1950's I was drinking 4-6 glasses of beer per day.

4. I was told by my doctor in the late 50's or 60's to reduce my drinking, but I ignored him and continued to drink.

5. I finally reduced my level of drinking around 1988, because I had a heart bypasses, gallbladder problems and diverticulitis. I was very sick and found I could no longer drink.

6. My hypertension was diagnosed around 1955."

24. In addition to his written statements Mr Fogarty also gave oral evidence during the hearing, much of which confirmed the content of his written statements.

25. Mr Fogarty did, however, expand upon the often hazardous nature of his service at sea, including his duties as a Signalman. In particular he spoke of his service in what he described as the "examination vessel", SS VICTORIA, which operated outside the three mile limit for periods of a fortnight at a time, and his service in the destroyer HMAS QUICKMATCH, at a time when that ship was a unit operating with the British Pacific Fleet.

26. Mr Fogarty described the living conditions in the VICTORIA, and in another vessel, HMAS ALLENWOOD, as "terrible".

27. As to his service in QUICKMATCH, Mr Fogarty's evidence was that the ship's role was that of an escort, operating in close proximity to Royal Navy aircraft carriers during periods when those ships were subjected to attacks by Japanese aircraft, including what were to become known as "Kamikaze" aircraft. Mr Fogarty explained that as a Signalman his place of duty was either on the ship's Bridge or Flag Deck, neither of which provided any form of protection.

28. Mr Fogarty's evidence was that as the "senior" destroyer escort the QUICKMATCH carried additional communication personnel, which meant that the living accommodation was only half the usual space for each sailor.

29. Mr Fogarty said that he was "about the only one that didn't smoke in the Mess". Because smoking on deck was banned everyone smoked in the Mess which, he said, was "just a complete haze".

30. Mr Fogarty said that at one time during his service in the QUICKMATCH the ship remained at sea for a period of some three months.

31. Mr Fogarty asserted that he first experienced "bronchial trouble" in 1940 while he was serving ashore in HMAS CERBERUS. He recalled being confined to bed in hospital for a period of eight to ten days with "pleurisy pneumonia". He added that during his service in the Navy he experienced five separate bouts of "bronchial trouble".

32. As he recorded in his written statements, Mr Fogarty asserted that he first started consuming alcohol after joining the Navy. He was then 18 years of age and continued to drink throughout his naval service. Again as recorded in his written statements, Mr Fogarty's evidence was that he drank alcohol whenever he went ashore, to relieve stress and tension, and "to be one of the boys". While serving in VICTORIA, his level of consumption routinely averaged "about 8 beers approximately every second day".

33. Again, as recorded in his statement dated 6 August 1999, it was Mr Fogarty's assertion that after discharge he continued to drink, meeting with friends at a hotel every Friday evening after work. He stated that on these occasions he would drink eight or more glasses of beer. He would also drink on other social occasions.

34. Mr Fogarty's evidence was that by 1957 he was drinking four glasses of beer per day, sometimes from six to eight glasses per day, even more at weekends. As he recorded in his statement dated 6 August 1999, this pattern continued until 1988, when he said he started to "ease down" because he was experiencing major health problems. He more or less ceased drinking in 1994.

35. It is understood that in the early 1960's Mr Fogarty was diagnosed with high blood pressure, and that since that time he has been on hypertensive medication. He further stated that his local doctor (Dr Lee) has been treating him since 1985, including treatment for "long standing hypertension".

36. Mr Fogarty stated that hypertension was diagnosed "around 1955". He added that because of medication "it has got down to almost normal".

37. Mr Fogarty stated in cross-examination that he finally ceased consuming alcohol in the early 1990's.

38. It was Mr Fogarty's evidence that he has never been diagnosed with a psychiatric condition (including GAD), although he has been told by two GP's that they considered he had a GAD.

39. When asked what were the main occasions when he drank alcohol, Mr Fogarty stated:

"As I said before Friday would be the, when my dad was alive, would be the main night. But then there would be reunions and things like that, there'd be main days. You'd have more than your six glasses on those occasions and you'd catch a cab home, or be driven home." (Transcript p. 26)

When further asked whether this was because he was aware that it could be dangerous to drive after consuming that amount of alcohol, Mr Fogarty responded by stating:

"Well you thought you knew when you'd had enough. But history has proven you didn't know." (Transcript p. 26)

40. In re-examination Mr Fogarty stated that he now realizes that he had driven "many many" times when on "today's situation" he should not have been driving.

41. Following his discharge from the Navy in January 1946 Mr Fogarty undertook a rehabilitation course in cabinet making. He then worked in the meatworks of Sims-Cooper for seven years before commencing work at the Trades Hall where he remained for 16 years, working his way up to become Secretary of the Cold Storage Union. He was the State Member of Parliament for Sunshine for 15 and a half years from 1973. He has not worked since his retirement in 1988.

42. Mr Fogarty stated that while employed at the meatworks he would have consumed alcohol at the hotel almost every evening after work, following which he would drive home.

43. Mr Fogarty said he thought the medication he was taking for his hypertension might be Valium, but he was not sure.

44. Mr Fogarty's wife, Olive Fogarty, provided a written statement in respect of these proceedings. The statement (Exhibit A4), is dated 11 February 2000 and reads as follows:

"1. I married my husband WILLIAM FOGARTY on the 9^th June 1945, when he was till (sic) in the Navy.

2. When my husband was discharged I noticed that he drank beer on a regular basis, consuming, I felt too much for his own good.

3. I resented the amount of beer my husband drank as we were young and struggling to raise a family and could ill afford it. However, he took no notice of me and continued to drink his regular 6-8 glasses of beer per day.

4. I did not drink at all and I would get very annoyed with him. It caused some problems between us.

5. My husband would become argumentative and irritable when he was drinking and would be looking for an argument.

6. Since my husband has reduced his drinking due to his heart problems, our life has become more peaceful."

45. As indicated earlier Dr E.S. Cole, who practices as a Consultant Psychiatrist, gave evidence at the hearing. He also provided two reports, the first dated 23 November 1999 (Exhibit A5), the second 3 March 2000 (Exhibit A6).

46. Dr Cole examined Mr Fogarty on 5 November 1999 but did not question him concerning his earlier smoking or drinking history. However, after reading the statements provided by Mr Fogarty and his wife, the doctor stated in his report dated 3 March 2000:

"It is apparent that the veteran suffered from alcohol abuse until he ceased drinking in 1988 and that his drinking was related to his war service. His chronic generalised anxiety disorder would also have had the effect of causing him to drink more than he might otherwise have done."

47. It was Dr Cole's opinion that Mr Fogarty is suffering from a chronic GAD which was in evidence when he was discharged from the Navy and that the condition is attributable to his war-service:

"In my opinion, he meets the requirements of the Statement of Principles for such a diagnosis. There was no suggestion that he might be exaggerating his symptoms, and, on the contrary, I think he is inclined to deny to himself the full extent of his anxieties. His nervous disorder is mild, does not call for psychiatric treatment and appears to have stabilised." (Exhibit A5)

The doctor explained that he formed this view after having regard for the history provided by Mr Fogarty.

48. It was Dr Cole's further view that Mr Fogarty satisfied the criteria relevant to the definition of GAD contained in SoP No. 48 of 1994.

49. During his evidence Dr Cole's attention was also invited to the definition of "psychoactive substance abuse or dependence" provided in SoP No. 83 of 1995 (which concerns Hypertension). It was the doctor's view that Mr Fogarty also satisfied at least the criteria contained in paragraph (b) of the definition if he drove while drinking (see paragraph 18 above).

50. As we have also indicated earlier, Dr B.M. Kenny, a Consultant Psychiatrist, gave evidence at the hearing.

51. Dr Kenny saw Mr Fogarty on 21 July 1999. He then provided a report for the purposes of these proceedings, dated 22 July 1999 (Exhibit R2).

52. During his oral evidence Dr Kenny confirmed that he asked Mr Fogarty concerning his consumption of alcohol:

"Yes. He said that he learned to drink, in the Navy, and he - the phrase he used was "used to give alcohol a bit of a nudge" - was the phrase he used - "for awhile thereafterwards". But he said that it was never a problem to him. He'd never had any drink driving, no drunk and disorderly incidence, no broken relationships, no loss of jobs because of drinking and no illnesses because of drinking." (Transcript p. 43)

53. Dr Kenny explained that, because at the time he saw him Mr Fogarty gave him the impression alcohol had never been a problem for him, he did not estimate the actual amount that Mr Fogarty consumed:

"... but I looked at whether it appeared to have had any effect on his life, and it didn't, so my impression of him was that he did not suffer from alcohol abuse or psychoactive substance abuse." (Transcript p. 45)

54. It was Dr Kenny's view that Mr Fogarty does not have a psychiatric disturbance of any kind. Indeed, he viewed Mr Fogarty as a reasonably active and confident man for his age.

55. When asked during cross-examination whether, because he did not have an accurate assessment of Mr Fogarty's alcohol consumption level, he was not able to address SoP No. 5 of 1994 (Psychoactive Substance Abuse or Dependence) in detail, the doctor confirmed that this was so.

56. It will be noted that during his evidence Mr Fogarty made reference to medication ("little pills") having been prescribed by his local GP in respect of "some sort of anxiety condition". When questioned concerning the nature of the treatment Mr Fogarty replied:

"Only the little pills. And after 50 years I wouldn't know what they were. But I've heard certain names that rang a bell but I wouldn't put it on record in case it's wrong." (Transcript p. 27)

57. It was Dr Kenny's evidence that Mr Fogarty had informed him he "thought he had nerve tablets in the late 1950's".

58. When asked what effect the tablets would have on Mr Fogarty's nervous condition if they were Valium, Dr Kenny said:

"Well, Valium is usually, of course, as a minor tranquilliser for anxiety and it would suggest that at that particular time he may well have been a somewhat anxious restless sort of person and one would expect that they might take the edge of that." (Transcript p. 49)

The doctor then went on to state that, if Mr Fogarty continued to be an anxious type of person, he would not necessarily have had to remain on Valium medication:

"I mean, Valium is an elective medication. I mean, you prescribe it for a patient if on balance you and the patient think it is worthwhile to deal with the person's anxiety. If on the other hand the individual takes it and doesn't feel much better, doesn't like the idea of taking tablets, then one would not be putting pressure on him to keep taking them. So there would be a great degree of variation in whether the individual would need to keep taking them, but on the other hand people often have periods of anxiety in their life for whatever reason which with a bit of treatment in terms of medication or support may settle down and then resolved in which case the individual may not need to continue to take any medication of any kind." (Transcript p. 49)

59. When asked how a drug such as Valium would react with alcohol, Dr Kenny stated:

"Well, any of these psychoactive drugs are inclined to react with alcohol so that you get - sometimes you get a summation of effects so that the Valium - it will, as it were, sometimes give the patient a start in terms of his drinking. It means, it is as though he has an extra three or four glasses or standard drinks in him before he starts drinking alcohol. So that is a well recognised sort of phenomenon." (Transcript p. 49)

Application of SoP's - Methodology

60. In Repatriation Commission v Deledio (1998) 49 ALD 1993 the Full Court of the Federal Court (Beaumont, Hill and O'Connor JJ) stated as follows:

"At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

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."

Whether Material Points to Hypotheses Connecting Claimed Disabilities with Circumstances of Service

61. After consideration of the whole of the material before us, we determine that such material points to hypotheses connecting the claimed disabilities with the circumstances of the particular service rendered by Mr Fogarty.

62. The facts raised by the material which have led to our determination are essentially as follows:

(a) That prior to his service in the Navy Mr Fogarty did not consume alcohol;

(b) That he served in the Navy from September 1940 to 4 January 1946;

(c) That while serving in the Navy Mr Fogarty experienced stressful conditions while at sea and commenced consuming alcohol which, although rationed while serving in ships, was otherwise generally available to him onshore when he drank socially with other sailors;

(d) That because of the living and accommodation situation during his periods of service at sea, particularly in QUICKMATCH, Mr Fogarty was subjected to "passive" smoking due to the smoking habits of his mess-mates;

(e) That after his discharge from the Navy, Mr Fogarty was in the habit of meeting with friends on Friday evenings, when he would consume eight or more glasses of beer per night. On other social occasions his level of consumption increased;

(f) That by 1957 Mr Fogarty was drinking four glasses of beer per day, sometimes six to eight glasses per day;

(g) That this pattern of consumption continued to 1988, at which time he experienced significant health problems. He ceased consuming alcohol in 1994;

(h) That Mr Fogarty was diagnosed with high blood pressure in the early 1960's;

(i) That since 1985 Mr Fogarty has been treated for hypertension.

Whether Hypotheses Reasonable

63. In our opinion that the hypotheses pointed to by the material before us are not reasonable. That is to say the hypotheses, which are in respect of IHD and GAD, do not contain one or more of the factors determined by the RMA in the relevant SoP's, to be the minimum which must exist, and be related to the person's service. This includes the factors upon which Mr Fogarty relies. In other words, the hypotheses fail to fit within the "template" to be found in the relevant SoP's, and thus the claims must fail.

64. Dealing first with the factor upon which Mr Fogarty relies in respect of IHD, namely factor 1(a) of SoP No. 85 of 1995, we have already recorded the respondent's concession that Mr Fogarty was hypertensive before the clinical onset of IHD in 1994.

65. However, as to the factor relied upon by Mr Fogarty in respect of hypertension, namely factor 1(b) of SoP No. 83 of 1995, we have formed the opinion that Mr Fogarty does not and never has suffered from psychoactive substance abuse or dependence. We should record that, in forming our opinion, we have preferred the evidence, both written and oral, of Dr Kenny. It follows, therefore, that Mr Fogarty's claim for IHD must also fail.

66. Finally, as we have recorded Mr Fogarty relies upon factor 1(b) of SoP No. 48 of 1994 in respect of his claim for GAD, that is to say experiencing a stressful event not more than two years before the clinical onset of GAD.

67. While we accept that Mr Fogarty experienced stressful service in the Navy, we have, however, formed the opinion that he never developed a GAP as a result of any aspect of his service. Indeed, his own evidence makes it very clear that since his naval service, Mr Fogarty has enjoyed not only a long and happy family life but also a most successful and rewarding working life, particularly while at the Trades Hall and then later in politics.

Decision

68. The decision of the Tribunal will be that the decision under review is affirmed. Mr Fogarty's pension will therefore remain at 80 per cent of the General Rate.

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of:

Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Mr A. Argent, Member

Associate Professor J. Maynard, Member

Signed:.....................................................................................

Personal Assistant

Date/s of Hearing 5/7/2000

Date of Decision 24/8/2000

Counsel for the Applicant Mr D. De Marchi

Solicitor for the Applicant De Marchi & Associates

Counsel for the Respondent Ms T. Chant

Solicitor for the Respondent Department of Veterans' Affairs