Pettigrew and Repatriation Commission [2003] AATA 45 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 45

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1135

VETERANS' APPEALS DIVISION )

Re EUNICE PETTIGREW

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date 17 January 2003

Place Brisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the death of John Frederick Pettigrew was war-caused and that his widow, Eunice Pettigrew, is entitled to be paid a war widow's pension from and including 25 December 1999.

(Sgd) IR Way

Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - war-widows' pension - whether veteran's death was war-caused - whether applicant entitled to pension

Veterans' Entitlements Act 1986 ss 5B, 6A, 8, 11, 13, 14, 119, 120, 120A, 196B(2)

Harris v Repatriation Commission [2000] FCA 1687

Repatriation Commission v Deledio (1998) 83 FCA 82

Repatriation Commission v Cooke (1998) 160 ALR 17

Repatriation Commission v Webb (1998) 51 ALD 575

REASONS FOR DECISION

17 January 2003 Mr IR Way, Member

1. This is an application by Eunice Pettigrew ("the applicant") for review of a decision of the Repatriation Commission, made on 10 March 2000 and affirmed by the Veterans' Review Board ("VRB") on 8 November 2000, that the death of the applicant's husband, John Frederick Pettigrew ("the veteran") was not war-caused.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:

* Exhibit A1 Statement of Eunice Pettigrew dated 12 February 2001

* Exhibit A2 Statement of Eunice Pettigrew dated 23 May 2002

* Exhibit A3 Recollections of veteran, John Frederick Pettigrew

* Exhibit A4 Report of Dr Janis Carter dated 11 April 2002

* Exhibit R1 Report of Associate Professor McCarthy dated 24 July 2001

* Exhibit R2 Clinical Notes - Dr Carter - dated 25 March 2002

3. The applicant and Dr J Carter, Psychiatrist, gave oral evidence. Associate Professor John McCarthy gave evidence by telephone.

4. Under section 13 of the Veterans' Entitlements Act 1986 ("the Act") the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.

5. The applicant is a widow of a veteran who rendered "operational service" as defined in subsections 5B and 6A of the Act, namely, continuous full-time service outside Australia during World War II.

6. Mr Pettigrew rendered operational service as he served with the Australian Army from 7 February 1942 to 26 June 1946 including service outside Australia (in Merauke) from 2 July 1943 to 20 September 1945.

7. The veteran was born on the 29 August 1922 and died on 24 December 1999, aged 77 years. The cause of the veteran's death is recorded as:

(a) Liver failure/chronic liver disease (3 weeks)

(b) Possible immunological hepatitis with cirrhosis (years) (T4/19)

8. The applicant has raised the following hypothesis:

* Prior to his enlistment, John Frederick Pettigrew did not drink alcohol.

* Whilst on active service in Merauke, John Frederick Pettigrew was subjected to stress.

* Because of the stress of service, John Frederick Pettigrew developed Panic Disorder.

* Because of stress of the service and/or the existence of the Panic Disorder, John Frederick Pettigrew commenced and continued to drink alcohol.

* On discharge, John Frederick Pettigrew continued to drink alcohol.

* Thus John Frederick Pettigrew had a service-induced drinking habit.

* This drinking habit was primarily beer - at least 6 to 8 beers per day.

* This drinking habit was perpetuated by the ongoing existence of the service-induced Panic Disorder.

* The veteran's service-induced drinking habit contributed to the veteran's cirrhosis of the liver, the cause of his death.

Legislative Scheme

9. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of section 8 provides:

"(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or 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; or

(e) the injury or disease from which the veteran died:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or

(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;

but not otherwise."

10. Section 120 describes the relevant standard of proof:

"(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, 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.

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c) the death of a person is war-caused or defence-caused; or

(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."

11. Other relevant provisions of the Act in respect of the claim are as follows:

"119 Commission not bound by technicalities

(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application; ...

the Commission:

(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

12. Section 120A provides that the reasonableness of hypothesis is to be assessed by the reference to the relevant Statement of Principles (SoP):

"(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran; ...

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(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.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be."

13. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.

14. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.

15. The Act provides that a hypothesis is not reasonable for the purpose of subsection 120(3) unless the SoP upholds the hypothesis.

16. There is no disagreement between the parties and the Tribunal is satisfied that the relevant SoPs in this matter are:

(a) Cirrhosis of the Liver - Instrument No 35 of 1998;

(b) Panic Disorder - Instrument No 9 of 1999; and

(c) Alcohol Dependence or Alcohol Abuse - Instrument No 76 of 1998.

Applicant's Evidence

17. The applicant provided two witness statements (Exhibits A1 and A2). In these statements the applicant said that she met her husband (John) prior to the war in 1938, moving in the same local neighbourhood social circles. She said that at this time she would see John about three times a week and he did not drink or smoke at all prior to joining the Army. She lost touch with him after this until he returned from overseas and their relationship was renewed in March 1946. At this point she said she noticed a definite difference in John, in that he now smoked and drank. She expressed the view that there was "no doubt in her mind that John would not have commenced to drink or smoke but for the fact that he went away to war". She said he drank primarily beer (with an occasional scotch) and consumed six to eight beers a day right up to a few years before he died, when he gave up drinking on medical advice and because of his liver problem.

18. With respect to his war service the applicant said that her husband did not talk very much to her or the family about his war experiences. However, when he first came back he suffered badly from nightmares. She said in her statement (Exhibit A1):

"... John also told us that when on guard at nighttime, they were told to keep an eye out for Japanese that may filtrate through that area but instead it was the Indonesians that would suddenly appear in front of them. Naturally, this stressed him quite a lot."

19. In cross-examination she said that these nightmares occurred once a month and ceased a couple of years after they were married in March 1947. She also said that at this time, and subsequently, her husband frequently panicked, being easily worked up when things went wrong. She could not recall specific incidents of her husband's panic attacks but in general referred to family matters with kids and the aftermath of infrequent occasions when the veteran's war-time mates would visit and her husband would go out drinking with them.

20. The Tribunal notes that the applicant, in completing an alcohol questionnaire in February 2000 (T4/22) stated:

"My late husband stated to me that the stress of overseas service was terrible and he saw injured and dead people during service. After service he suffered severe nightmares and on a number of occasions he nearly strangled me. This continued for many years after service. He stated the alcohol helped him to sleep and forget the terrible memories."

21. After the veteran's death, the applicant said that, when she was going through his things, she found a number of papers which she had not seen before but which she was sure her husband had typed and which related to some of his war-time experiences (Exhibit A3). She said she was able to identify handwritten notes on these papers as being the handwriting of her late husband.

22. The Tribunal notes that in these typewritten pages the veteran has recorded that his unit, 102 Workshops, left Kedron Park in early March 1942 to go north by road where in Rockhampton one morning he "made a deal with him (a corporal) as there is a hotel across the road, I asked him if I could go over for a drink first so he told me not to be long, so I had one drink then back to guard duty for a short time before leaving Rockhampton".

23. The veteran's papers record his unit arriving in Merauke in mid-1943 and he describes "a couple of lads (after a few drinks) skylarking at Christmas time". He also records in more detail the circumstances of being stressed by local Indonesians who used a track through the unit camp area, as follows:

"This track was also used by the people of Boeti as a shortcut through to the Chinese owned toko lima (shop five) or general store, so these people could walk straight through our camp area to the road although we had a guardbox just inside the main gate on the main road and some of us had to go on guard each night these people still had axcess [sic] and instead of two men standing guard together - two hours on then four hours off through the night which was the regulation method someone in the later stages got the idea of each man doing his two hours alone and then you were finished for the night, this worked out well for who-ever drew the first few shifts at night till about midnight then after this it was lonely and nerve shattering, hearing the natives (being head-hunters) whistling as they went along the road in the darkness and knowing that although you could not see them, they could see you...."

24. Later on in his account, the veteran states:

"When the fighting got up to Morotai and Tarakan, Merauke became a stop-over for the wounded on their way back to the mainland, particularly late in the afternoon if they couldn't make it back to the mainland before dark the planes would unload the wounded here for the night and also have their wounds dressed before the journey back to the mainland the next day."

Medical Evidence

25. Dr Janis Carter, Consultant Psychiatrist, saw the applicant four times, each occasion being of approximately thirty to thirty-five minutes duration. Dr Carter also had available the section 37 documents and Exhibits A1, A3 and R1.

26. In her report, Dr Carter summarises her opinion as follows:

"It seems evident that John Pettigrew did not suffer from any mental illness prior to going to serve in New Guinea. He was an upstanding young man in a protected industry, who didn't have to go to war, but when he finished his apprenticeship he did volunteer, and he did serve overseas at Merauke, which is now Irian Jaya.

It was easy to establish that he suffered from panic disorder, on careful history taking of Eunice. The stressors were not directly obvious, because we had no entries into medical records, but from his own writings we can certainly see that he was troubled, and was trying to work through his traumatic experiences. Luckily, Eunice knew him prior to his going to war, and was able to attest to the difference she found when he came back from war. He did die as a result of his liver problems, and his alcohol consumption seemed to be as a result of his emotional symptoms of panic disorder. He came from a very straight-laced family who didn't drink or smoke. His alcohol drinking was at variance to the whole family system, yet he did it. He did try to give up drinking alcohol, but it wasn't until he had severe liver problems and he couldn't physically tolerate it, that he finally gave up drinking it towards the end of his life, but unfortunately this was too late."

27. With respect to panic disorder, Dr Carter said that this was the result of stressors while the veteran was on service in Merauke: "One was when he was on guard duty and head hunters would walk by, and the second one was when he was bombed at his base".

28. With respect to the latter stressor, Dr Carter relied on the evidence of Associate Professor McCarthy (Exhibit R1) quoting from that report in her report as follows:

"Mr Pettigrew served in Merauke from 4 July 1943 to 20 September 1945, apart from a period of leave. From page 4 of John McCarthy's letter he states: 'Merauke was subjected to Japanese air attack. The official history [Odgers, op.cit., p.113] notes that on 31 December 1942, 22 Japanese bombers attacked the town and airfield. This, of course, is before the arrival of the late veteran. On 9 September 1943, 16 Japanese bombers attacked the airfield, causing one minor casualty and destroying a fighter aircraft'.

The veteran would have known about the first attack before his service, and would have witnessed the second attack. Although there were no deaths in the second attack, it would be a severe stressor to have bombs being dropped on the airfield near the camp."

29. With respect to the "head hunter" stressor, Dr Carter relied on the veteran's recollections of guard duty (as already quoted above - Exhibit A3).

30. Dr Carter further was of the view that it was relevant that the veteran "saw wounded" and she referred again to Exhibit A3 (as already quoted above).

31. In her oral evidence, Dr Carter confirmed the veteran's symptoms of panic attack as set out in her report, leading to her diagnosis of panic disorder as defined in SoP Instrument No 9 of 1999 (Panic Disorder). It was her opinion that the veteran met seven of the symptoms related to panic attack and, furthermore, she expressed the view that the veteran suffered from panic disorder as he met the criteria in paragraph 2(b) of Instrument No 9 of 1999, namely:

"(2)(b) For the purposes of this Statement of Principles, 'panic disorder', means a psychiatric condition characterised by the following diagnostic criteria:

(A) the person has experienced both:

(1) recurrent unexpected panic attacks; and

(2) (i) has experienced at least four panic attacks in four weeks, or

(ii) in the case of fewer panic attacks, at least one of the panic attacks has been followed by 30 days (or more) of one (or more) of the following:

(a) persistent concern about having additional panic attacks; or

(b) worry about the implications of the panic attack or its consequences; or ..."

32. With respect to the veteran's alcohol consumption, Dr Carter, referring to Instrument No 76 of 1998 (Alcohol Dependence or Alcohol Abuse), expressed the view that the veteran suffered from alcohol dependence meeting all of the diagnostic criteria set out in paragraph 2(b) of the SoP, namely:

"(2)(b) For the purposes of this Statement of Principles,

'alcohol dependence' means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect

(b) markedly diminished effect with continued use of the same amount of alcohol

(2) withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome for alcohol

(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

(3) alcohol is often taken in larger amounts or over a longer period than was intended

(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use

(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects

(6) important social, occupational or recreational activities are given up or reduced because of alcohol use

(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol."

Evidence of Associate Professor McCarthy

33. John McCarthy (Associate Professor and Visiting Fellow, Australian Defence Force Academy) provided a report about certain aspects of this case, based upon historical evidence (Exhibit R1).

34. Relevant extracts from this report are:

"...the late Veteran served in Merauke from 4 July 1943 to 20 September 1945.

Merauke ... is situated on the southern coast of New Guinea... Initially Merauke was occupied by American forces in mid-1942 with the objective of establishing an advanced air field. The Japanese made no attempt to advance along the southern coast of New Guinea but rather concentrated their attention on the northern coast... Nevertheless, fear of a Japanese offensive along the southern New Guinea coast led to the Merauke garrison being strengthened. By February 1943 this garrison consisted of an American anti-aircraft battery, an Australian infantry battalion and a company of Netherlands East Indies troops. The garrison was further strengthened in April/May 1943 with the arrival of another infantry battalion and company together with a force of engineers. Clearly the late Veteran arrived with this force. By the end of 1943, two RAAF squadrons were also stationed there. By July 1943 the Merauke garrison consisted of 3500 Australian troops and 700 members of the RAAF...

By the second half of 1944 it was perceived, however, that the threat to Torres Strait and Dutch New Guinea had been substantially reduced... On 6 August 1944, HQ 11 Infantry Brigade left Merauke soon to be followed by 31/51 Infantry Battalion and 2/9 Field Regiment. In February 1945 the last infantry unit left Merauke when 20 Motor Regiment which had been acting in an infantry role departed for Sydney. On 4 July 1945 the command of the Merauke region was handed over to the Dutch authorities... It would seem therefore that allied forces at Merauke peaked in July 1943, at the time of the late Veteran's arrival, at a little over 4000 allied personnel and remained static until the second half of 1944 when the number of personnel quickly began to be reduced.

It seems clear when the Japanese troop dispositions are examined that Merauke was never threatened by Japanese land forces... Clashes between Australian and Japanese patrolling troops did take place but these actions were far from Merauke and to the north and west ... there is no evidence which suggests that Merauke was ever subjected to attack from the sea.

Merauke was subjected to Japanese air attack. The official history ... notes that on 31 December 1942 22 Japanese bombers attacked the town and airfield. This, of course, was before the arrival of the late Veteran. On 9 September 1943 16 Japanese bombers attacked the airfield causing one minor casualty and destroying a fighter aircraft... A record of any further direct air attack on Merauke cannot be located.

It has proven difficult to find evidence that the late Veteran was likely to have seen injured and dead people as a result of enemy action while stationed at Merauke and that the stress of his service there and incidents which occurred there would have led to a beginning of alcohol consumption..."

35. In cross-examination, Associate Professor McCarthy agreed that the account in the Veteran's Recollections (Exhibit A3) about wounded transiting through and having wounds dressed at Merauke was not inconsistent with his research, nor was it inconsistent that the applicant saw dead bodies as recollected by the veteran.

Submissions

36. Mr O'Gorman for the applicant, submitted that the applicant will be entitled to a war widow's pension if the Tribunal is satisfied of a sufficient relationship between the death of her husband with his service in the Australian Army during World War II and, in the circumstances of this case, the Tribunal can only be satisfied of such a relationship if a factor in a relevant Statement of Principles has been met and in this case the relevant Statement of Principles is that concerning cirrhosis of the liver, namely Instrument No 35 of 1998.

37. It was submitted that Factor 5(a) of this SoP is met, namely,

"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ... death from cirrhosis of the liver with the circumstances of a person's relevant service are:

(a) for men, consuming at least 150kg of alcohol (contained within alcoholic drinks) with any 10 year period before the clinical onset of cirrhosis of the liver; or ..."

38. That is, it was submitted, that the veteran had a service-related "drinking" habit which resulted in consumption of alcohol in excess of 150kg of alcohol over a ten year period. In so submitting, Mr O'Gorman said that the applicant was relying on the opinion of Dr Janis Carter, who clearly relates the veteran's "drinking" habit with his service, stating:

"It seems evident that John Pettigrew did not suffer from any mental illness prior to going to serve in New Guinea. He was an upstanding young man in a protected industry, who didn't have to go to war, but when he finished his apprenticeship he did volunteer, and he did serve overseas at Merauke, which is now Irian Jaya.

It was easy to establish that he suffered from panic disorder, on careful history taking of Eunice. The stressors were not directly obvious, because we had no entries into medical records, but from his own writings we can certainly see that he was troubled, and was trying to work through his traumatic experiences. Luckily, Eunice knew him prior to his going to war, and was able to attest to the difference she found when he came back from war. He did die as a result of his liver problems, and his alcohol consumption seemed to be as a result of his emotional symptoms of panic disorder. He came from a very straight-laced family who didn't drink or smoke. His alcohol drinking was at variance to the whole family system, yet he did it. He did try to give up drinking alcohol, but it wasn't until he had severe liver problems and he couldn't physically tolerate it, that he finally gave up drinking it towards the end of his life, but unfortunately this was too late."

39. It was submitted that while the opinion of Associate Professor John McCarthy (as expressed in Exhibit R1) is something to be considered by the Tribunal, it is of limited assistance in that, inter alia, record-keeping in those times was often very limited. Furthermore, it was submitted that the Tribunal should take into account that on cross-examination Associate Professor McCarthy accepted that, in the absence of more detailed records, it was possible that the veteran "saw injured and dead people" as a result of the Japanese bombing attack in September 1943 and that Dr Carter was correct in assessing this as a war-caused stressor leading to the veteran's alcohol dependence.

40. Mr Williams for the respondent, submitted with respect to Factor 5(a) of the Statement of Principles for cirrhosis of the liver, that while the veteran's level of consumption of alcohol meets the quantum requirements of Factor 5(a), such consumption was not related to the veteran's relevant service. There being no relevant medical conditions within the context of the other factors listed in the SoP for cirrhosis of the liver, it was submitted that the veteran's death was not war-caused.

41. With respect to the application of the SoP for panic disorder, it was submitted that for this disorder to be related to service the veteran must have experienced a severe stressor within the two years immediately before the clinical onset of the disorder and that, in this case, the veteran did not experience a severe stressor within the meaning of that term as defined in the relevant SoP. That being so, the veteran was not suffering a war-caused psychiatric disorder at the time of clinical onset of alcohol dependence (nor had he experienced a severe stressor) and, as such, the veteran's alcohol dependence or alcohol abuse was not war-caused.

42. In so submitting, Mr Williams contended that there was no direct evidence of the veteran's recollection of seeing or being an active participant with respect to casualty evacuation or dead bodies. Nor was there any direct evidence of the veteran witnessing or being subjected to enemy air attacks. Mr Williams referred the Tribunal to Ha Harris v Repatriation Commission [2000] FCA 1687, with respect to ascertaining the existence or otherwise of the facts in this matter.

Consideration

43. There is no disagreement between the parties that the cause of the veteran's death was liver failure/chronic liver disease, the duration of the illness being three weeks and, on the material before it, the Tribunal so finds.

44. In Repatriation Commission v Deledio (1998) 83 FCA 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies, namely:

"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 s196B(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 s196B(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 s120(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."

45. After careful consideration of all the material before it, the Tribunal is satisfied that the material before it points to an hypothesis as contended by the applicant connecting the veteran's death with a service-related drinking habit.

46. The Tribunal is satisfied, in the first instance, that a relevant SoP is in force, namely, Instrument No 35 of 1998, cirrhosis of the liver. The relevant factor in this SoP upon which the applicant relies and which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the veteran's death with the circumstances of his relevant service, is Factor 5(a), namely:

"for men, consuming at least 150kg of alcohol (contained within alcoholic drinks) with any 10 year period before the clinical onset of cirrhosis of the liver; ..."

and, furthermore, the veteran's consumption of at least 150kg of alcohol must be related to his relevant service.

47. After careful consideration of all of the material before it, the Tribunal is of the view that the raised facts in this matter with respect to consumption of alcohol are consistent with the SoP template and, as such, that part of the raised hypothesis is reasonable.

48. In this case it is common ground between the parties that the veteran consumed at least 150kg of alcohol (contained within alcoholic drinks) within a ten year period before the clinical onset of cirrhosis of the liver and, in view of this and on the material before it, the Tribunal so finds.

49. The crucial question then is whether the veteran's consumption of alcohol was "service-related" and the applicant's claim must succeed unless the Tribunal is satisfied beyond reasonable doubt that the veteran's drinking habit was not war-caused.

50. Dr Carter's evidence is that the veteran suffered from "alcohol dependence". She based her opinion on the evidence of the veteran's wife as it applied to the SoP for Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998). The Tribunal, as already indicated, is satisfied that the SoP, Instrument No 76 of 1998, Alcohol Dependence or Alcohol Abuse, is relevant in this matter. "Alcohol dependence" is defined in that SoP in the following terms:

"(2)(b) For the purposes of this Statement of Principles,

'alcohol dependence' means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1) tolerance, as defined by either of the following:

(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect

(b) markedly diminished effect with continued use of the same amount of alcohol

(2) withdrawal, as manifested by either of the following:

(a) the characteristic withdrawal syndrome for alcohol

(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

(3) alcohol is often taken in larger amounts or over a longer period than was intended

(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use

(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects

(6) important social, occupational or recreational activities are given up or reduced because of alcohol use

(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol."

51. The Tribunal accepts Dr Carter's opinion that the veteran meets all of the above criteria and finds that the veteran suffered from alcohol dependence. In so doing, the Tribunal is mindful that the standard of proof, in determining whether diagnostic criteria are met, is that of reasonable satisfaction (see Repatriation Commission v Cooke (1998) 160 ALR 17 at 20). Furthermore, the Tribunal is satisfied that the veteran developed his maladaptive pattern of alcohol use on his return from the war and that the clinical onset of his alcohol dependence occurred at, or about, this time. In arriving at this conclusion the Tribunal has taken into account the veteran's evidence that he did drink during his service and that alcohol was available to servicemen in Merauke.

52. This then brings into question two other aspects of the applicant's hypothesis. The relevant factors, one of which must exist before it can be said that a reasonable hypothesis has been raised connecting the veteran's alcohol dependence with the circumstances of his service, are Factors 5(a) and 5(b) of Instrument No 76 of 1998, namely:

"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:

(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; ..."

53. In taking this approach the Tribunal is mindful that in Repatriation Commission v Webb (1998) 51 ALD 575, the Full Federal Court held, with respect to considering the reasonableness of an overall hypothesis, that (at 582):

"The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. If so, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not permissible to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply those doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole."

54. The first question that arises from this is whether the veteran suffered from a psychiatric disorder at the time of the clinical onset of alcohol dependence.

55. Dr Carter said that she is of the view that the veteran suffered from "panic disorder" within the meaning of that condition as set out in Instrument No 9 of 1999 (Panic Disorder). In so doing, Dr Carter opines that the veteran meets seven of the thirteen criteria stated in the SoP with respect to panic attack, namely:

"(1) palpitations, pounding heart, or accelerated heart rate; or

(2) sweating; or

(3) trembling or shaking; or

(4) sensations of shortness of breath or smothering; or ...

(7) nausea or abdominal distress; or

(8) feeling dizzy, unsteady, light headed or faint; or ...

(12) paresthesias (numbness or tingling sensations); or ..."

and, as indicated in paragraph 26 above, has diagnosed the veteran as suffering "panic disorder" with the clinical onset of this disorder being at or about the time of the conclusion of his war service. The Tribunal accepts Dr Carter's opinion and finds that the veteran suffered from "panic disorder", the clinical onset being at or about the time of the conclusion of his war service.

56. In order for the veteran's panic disorder to be related to his relevant service he must, in this case, satisfy Factor 5(a) of Instrument No 9 of 1999, namely:

"experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; ..."

and that the stressor must be connected with the circumstances of his service.

57. The Tribunal, as already indicated, is satisfied that SoP Instrument No 9 of 1999, Panic Disorder, is relevant in this matter and the Tribunal is of the view that the hypothesis is a reasonable one, in that, on the raised facts, the hypothesis fits within the template in the SoP, namely Factor 5(a).

58. The question then before the Tribunal is whether the Tribunal is satisfied beyond reasonable doubt, pursuant to subsection 120(1) of the Act, that the veteran experienced a severe stressor on his service in Merauke, as raised in the applicant's hypothesis and as defined in Instrument No 9 of 1999 (Panic Disorder).

59. "Experiencing a severe stressor" is defined in this SoP as follows:

" 'experiencing a severe stressor' means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's physical integrity.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abuse violence."

60. After careful consideration of all of the material before it, taking into account the paucity of records and the veteran's incomplete recollections and unwillingness to discuss his war experiences with his wife, the Tribunal has formed the view that it is possible, as conceded by Associate Professor McCarthy, that the veteran actually observed casualty clearance and dead bodies as a result of the Japanese air attack on Merauke in September 1943 and, in addition, as a result of other operations carried out by Australian forces against the Japanese.

61. As such, the Tribunal is not satisfied, beyond reasonable doubt, that the veteran did not experience a severe stressor within the meaning of that term in Instrument No 9 of 1999 (Panic Disorder).

62. As indicated above, the Tribunal is satisfied that the clinical onset of the veteran's panic disorder occurred on his return to Australia from Merauke and therefore he meets Factor 5(a), in that he experienced a severe stressor within the two years immediately before the clinical onset of panic disorder.

63. For the reasons given above, the Tribunal is satisfied beyond reasonable doubt that the applicant suffered war-caused panic disorder at the time of discharge from the Army.

64. The Tribunal has already found that the applicant suffered from alcohol dependence at this time and, following the Tribunal's acceptance of the veteran's psychiatric disorder at this time, the Tribunal is satisfied beyond reasonable doubt that the veteran meets Factor 5(a) of Instrument No 76 of 1998, namely:

"suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; ..."

and that his alcohol dependence is war-caused. In so finding, the Tribunal is satisfied beyond reasonable doubt that the causal relationship between the veteran's service and his alcohol dependence is much more than a simple temporal connection.

65. That being so, the Tribunal is satisfied beyond reasonable doubt that the veteran meets Factor 5(a) of Instrument No 35 of 1998, namely, having a service-induced consumption of at least 150kg of alcohol within any 10 year period before the clinical onset of cirrhosis of the liver, and that his death was war-caused.

66. It should be noted that the Tribunal, in arriving at its conclusion, has given consideration to the matter of Harris v Repatriation Commission [2000] FCA 1687, as referred to by the respondent.

67. The Tribunal therefore sets aside the decision under review and in substitution therefor determines that the death of John Frederick Pettigrew was war-caused and that his widow, Eunice Pettigrew, is entitled to be paid a war widow's pension from and including 25 December 1999.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

Signed: Sarah Oliver

Associate

Date of Hearing 5 December 2002

Date of Decision 17 January 2003

Counsel for the Applicant Mr D O'Gorman

Solicitor for the Applicant Gilshenan and Luton

Solicitor for the Respondent Mr B Williams, Departmental Advocate