Jimmieson and Repatriation Commission [2009] AATA 89 (12 February 2009)

Last Updated: 12 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q200600828

VETERANS' APPEALS DIVISION		)
	Re		TERRANCE JIMMIESON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr K S Levy RFD, Senior Member

Date 12 February 2009

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..............[Sgd]....................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – alcohol abuse/dependence – whether alcohol abuse/dependence was defence-caused – clinical onset of alcohol abuse – whether applicant was unable to obtain appropriate clinical management – decision affirmed

Veterans’ Entitlements Act 1986 (Cth), ss 5D, 70, 120, 120B, 196B

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Repatriation Commission v Yates (1997) ALD 487

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius (2002) FCA 750

Youngnickel v Repatriation Commission (2004) FCA 1961

Re Skene and Repatriation Commission [2004] AATA 782

Repatriation Commission v Milenz [2006] FCA 1436; (2006) 93 ALD 107

Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80

Repatriation Commission v Law [1981] HCA 57; (1980) 31 ALR 140

Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635

Roncevich v Repatriation Commission (2003) 75 ALD 345

Re Lindsay and Repatriation Commission (1995) 39 ALD 108

Re Penhall and Repatriation Commission (1992) 28 ALD 261

REASONS FOR DECISION

12 February 2009	Dr K S Levy RFD, Senior Member
INTRODUCTION

1. This application is a rehearing of part of a former decision of this Tribunal as a remitter from the Federal Court of Australia. Mr Terrance Jimmieson, the Applicant in this case, originally applied on 30 January 2004 for acceptance of a condition of Post Traumatic Stress Disorder (PTSD) as being service related. That application was initially determined by the Repatriation Commission on 24 September 2004, and decided that the appropriate medical diagnoses were PTSD, alcohol dependence or alcohol abuse and depressive disorder. However, it held that none of those conditions were related to the Applicant’s service, either operational service or eligible defence service (the period 7 December 1972 to 9 May 1974).
2. On 14 August 2006, that decision was reviewed by the Veterans’ Review Board which held that the condition of alcohol dependence or alcohol abuse was a diagnosed condition but again confirmed that there was no condition related to the Applicant’s defence service.
3. The matter was then appealed to the Administrative Appeals Tribunal which on 4 January 2008 (the Tribunal’s first decision) held that: neither of the incidents put forward by the Applicant as being the cause of the psychiatric conditions were related to operational service; and, post traumatic stress disorder was also not related to eligible defence service. However, in the reasoning in that decision the Tribunal held that the Applicant developed alcohol abuse whilst in the Navy and while on eligible defence service. It also held that the condition of major depressive disorder, and alcohol dependence, were consequential effects of alcohol abuse and therefore were referrable to eligible defence service. This latter aspect of that decision, relating to recognition of the condition of alcohol abuse as having originated during eligible defence service and the consequential development of alcohol dependence and major depressive disorder, were the subject of appeal to the Federal Court of Australia. By consent, the appeal in relation to this latter aspect (paragraphs 74 and 75 of the original decision which have now been set aside) are now the subject of the current re-determination before this Tribunal.

ISSUE

4. The issue for determination in this matter is whether Mr Jimmieson’s conditions of alcohol abuse and the subsequent conditions of depressive disorder and alcohol dependence are “defence caused” within the meaning of s 70(5) of the Veterans’ Entitlement Act 1986 (the Act). The relevant statutory provisions are referred to later.
5. The decision under review is focussed on whether the condition of alcohol abuse is “defence caused”. The Applicant has indicated through Counsel’s Outline of Submissions that the Statement of Principles (SOP) for depression cannot be effectively argued and now recommends that a finding be made that that condition not be held to be defence caused. The Respondent has proceeded to argue on that basis also. I accept those submissions and find that depression is not defence caused. Therefore, this decision must effectively deal with whether or not Mr Jimmieson’s alcohol abuse (and now alcohol dependence) can be said to be related to his “eligible defence service”.
6. The Applicant’s present claim is that his conditions are due to an inability to obtain appropriate clinical management during his defence service. The issues to be determined are:

(1) Did the Applicant suffer a condition (ie. clinical onset) of alcohol dependence or alcohol abuse before or during his eligible defence service, ie., during the period 7 December 1972 until 9 May 1974?

(2) Was the Applicant unable to obtain appropriate clinical management for that condition during his defence service?

(3) If so, was the inability to obtain appropriate clinical management connected to the Applicant’s defence service?

(4) Did such inability materially contribute to, or did it aggravate, Mr Jimmieson’s condition of alcohol abuse or alcohol dependence?

EVIDENCE

7. The background briefly is that the Applicant served in the Royal Australian Navy (RAN) from 3 May 1968 until 9 May 1974. He had two brief periods of operational service in Vietnam waters while serving on HMAS Duchess in April and May/June 1971.
8. Mr Jimmieson’s statement of 6 September 2007, presented at the first Tribunal hearing, shows that he did not drink before he joined the Navy and after joining, he drank moderately only, both on shore and when at sea. The Applicant claims that after two incidents in 1971, his drinking pattern changed and he drank heavily after that time. He continued drinking heavily until the end of his naval career when he took early discharge three years later in May 1974. His still drinks heavily (60 cans of beer per week and half a bottle of rum and sometimes port and tequila also).
9. He was married in 1972. His marriage failed in 1980 due to heavy drinking.
10. In a supplementary statement dated 7 November 2008, the Applicant confirmed that his drinking increased in the early 1970s. He stated while he had a shore posting to HMAS Albatross, his drinking increased as it was only 5 or 10 cents per pot. He had no close supervision on his job and consequently his heavy and frequent drinking did not cause any job related problems. He never sought treatment for his drinking as that was the culture in the Navy and it would have been seen as weakness or malingering. He claimed there were no alcohol or drug awareness programs in the 1970s.
11. There were five other statements provided from former RAN members. Two statements were provided by those who were acquaintances of Mr Jimmieson and three other statements were provided by those who were not acquaintances. All had a similar tone suggesting that the culture in the Navy at the time encouraged heavy drinking. All statements also referred to insinuations of “weakness” or “malingering” if sailors sought treatment from the sick bay. All said that sailors could be socially isolated if they were not involved in the culture of drinking. One statement by a Mr Paul Toonen indicated a small number of sailors, including himself, did not drink heavily but they were a minority. However, those who did drink would then obtain the ration of those who were non-drinkers. The ration only applied to junior sailors and no such restriction applied to senior sailors. Mr Toonen attested to the fact that many sailors he observed were alcoholics and he did on occasion send sailors off watch because they were not fit to carry out their duties due to their consumption of alcohol. A theme in the statements was that because it was an established culture, disciplinary action in a formal sense was not taken but other duties or alternative methods of discipline were found.

MEDICAL EVIDENCE

12. Dr Geoffrey Rees provided three reports dated 2 April 2004, 13 June 2006 and 17 August 2007. Dr Rees was the treating psychiatrist and said that making a diagnosis relevant for 1973 was difficult, but he was satisfied that Mr Jimmieson suffered alcohol abuse then. He said that this developed into alcohol dependence much later. On the basis of the history, Dr Rees said social problems post-dated the Applicant’s discharge in 1974. He also said however that depression was evident before alcohol abuse.
13. Professor Ivor Jones provided a report at the request of the Respondent. His first report was dated 6 September 2007. He also gave oral evidence that personality factors generally could lead to depression, then to alcohol abuse and subsequently to alcohol dependence. While Professor Jones did not believe that several incidents relied upon from Mr Jimmieson’s operational service could have initiated any psychiatric condition, he agreed that by 1971 Mr Jimmieson was drinking heavily and that his drinking continued to escalate from that time. He noted Mr Jimmieson’s suicide attempts in 1980 and 2000, and that his marital breakdown in 1980 was due to drinking, not to financial difficulties. Professor Jones referred to Mr Jimmieson suffering “alcoholism” for 35 to 40 years, its onset being while he was undertaking service in the Navy. The onset described to him was “social rather than therapeutic”, which I take to mean that it occurred while in the defence service but was a result of off-duty, social activities and not causally attributable (in Professor Jones’ view) to the stress of service life.
14. Professor Jones provided a further report on 21 November 2008, without undertaking a further consultation with Mr Jimmieson. In this report, Professor Jones suggested that the Applicant was resistant to the adverse effects of alcohol for a considerable period, indeed until well after he had left the Navy. He observed alcohol was seen as a ‘rite of passage’ and ‘index to manhood’ amongst young males in the 1970s, particularly those in the defence forces. Professor Jones said, that in his opinion, Mr Jimmieson would have presented for treatment much earlier had his naval experience been the prime cause of his alcohol abuse.
15. In relation to clinical management of his condition, Professor Jones said that appropriate treatment for alcohol abuse or alcohol dependence in the 1970s was not very different to that which exists today. His report of 21 November 2008 referred to psychological treatment, group therapy, and drugs. During his oral evidence, he added that while all those treatments may have been refined, there has not been “a radical change in these techniques”.
16. At the hearing of the current review, Professor Jones gave oral evidence that the first clinical indication of alcohol abuse was when Mr Jimmieson’s marriage broke down in 1980. He also said that it was a clearer case of alcohol abuse about the time he attempted suicide in 2000. He said Mr Jimmieson was certainly suffering alcohol abuse by the time he saw him in 2004, although he saw no evidence that alcohol abuse necessarily predated depression.
17. Professor Jones observed that heavy drinking is not synonymous with alcohol abuse. He noted there was nothing in the naval records to suggest that there were problems associated with alcohol consumption, such as charges of drinking on duty. Nor was his early discharge related to heavy drinking. He also noted no evidence of alcohol problems for many years until after he had left the Navy. He did not question the veracity of the heavy drinking but Professor Jones concluded that Mr Jimmieson seemed to have been coping well with it for a very long time.
18. He referred to alcoholism as being a broad term that covers both alcohol abuse and alcohol dependence. He said alcohol abuse was not like measles or some other disease which arises only because of contact with others. He said it depends on initial contact, and then there had to be a willingness to drink. There must also be denial that an alcohol problem exists.
19. In relation to an aggravation of a drinking problem in the Navy, Professor Jones acknowledged that there was strong social pressure for that behaviour to continue. He said that pressure did not disappear outside the Navy but it was not as great as that which existed within the armed services, particularly in the 1970s and where groups of young men were involved. An aggravation requires an increase in the symptoms from a psychological point of view. However, the evidence presented to him from a medical standpoint was that the drinking continued but was not aggravated in the sense that there was evidence of an increase in drinking behaviour.
20. He referred also to the susceptibility of some people and said that there was a minority of people who had a familial or genetic tendency to alcoholism. The development due to genetic causes, he said, would be likely to be over a long period of time and four or five years (as occurred with Mr Jimmieson) would be unusual. He suggested also that such people would be affected after about 20 years or longer and where they were not able to get any treatment. He suggested that in Mr Jimmieson’s case, if there was a genetic factor and if it did contribute to his condition, it did not explain why Mr Jimmieson did not seek treatment shortly after leaving the Navy.
21. In cross-examination by Mr Nathan Jarro, Professor Jones stated that he did not recall giving evidence in November 2007 at the first Tribunal hearing. He also commented that he would expect alcohol abuse to predate alcohol dependence. However, page 3 of Professor Jones’ latest report said that alcohol dependence predated alcohol abuse – a position which he agreed was wrong and that the reverse sequence should have been shown in the report. Professor Jones said the onset of alcoholism was in the Navy and that the onset of depression was unclear but was probably very much later. He agreed with statements made by Warrant Officer Rigby and other statements by former Navy personnel about the pressures on people in the defence forces, particularly during the 1970s, to drink alcohol excessively. He also referred to confirmatory medical tests that he had undertaken on Mr Jimmieson such as liver function, and these appeared normal.

CONSIDERATION

22. I have taken account of all the evidence presented at the first hearing and distilled with any new evidence presented at the latest hearing. In addition, the relevant statutory and case law necessary to answer the issues before the Tribunal have also been taken into account.
23. The earlier decision of the Tribunal was based essentially on the evidence that Mr Jimmieson had drunk excessively from 1971 whilst in the Navy until his discharge in 1974. However, the Tribunal accepted Professor Jones’ view at the first hearing that there were some social factors or personality factors in the Applicant’s background which contributed to the initiation of heavy drinking from 1971 onwards. This resulted in a sequence of events of: early discharge in 1974, a marriage breakdown in 1980 due to the Applicant’s drinking, a suicide attempt in 1980, and an ongoing pattern of excessive drinking ever since. There has been a subsequent suicide attempt and a diagnosis of depression also since that time.
24. The Respondent argued at the start of the latest hearing that further evidence should be admitted. The Applicant objected, given the Order of the Federal Court that the limited question be referred to the Tribunal for rehearing without the taking of further evidence. However, the Respondent submitted that further evidence is not precluded and referred the Tribunal to Repatriation Commission v Yates (1997) 46 ALD 487. That decision held that s 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth) would ordinarily express any requirement about the hearing of further evidence, and that this should include any prohibition on the hearing of further evidence. I ruled that in the circumstances there should be no impediment to the receiving of fresh evidence in respect of the limited questions referred to the Tribunal. In making that determination I also took account that Dowsett J made no order of prohibition as referred to in Yates (supra).
25. In respect of the material before the Tribunal, I was satisfied the evidence pointed to the following:

(1) There was a culture of drinking alcohol at higher levels than normal among a very large number of young males in the RAN during the period under review.

(2) Statements by former Navy personnel support the existence of the culture of heavy drinking, although it is circumstantial and not specific to Mr Jimmieson.

(3) Mr Jimmieson commenced drinking heavily while serving in the RAN from 1971 and through to his discharge in 1974.

(4) There were some social or personality factors present which led to the onset of the Applicant’s drinking.

(5) There is no report or evidence of Mr Jimmieson not coping with his official duties whilst in the RAN, although he was granted discharge three years earlier than the period of his official engagement.

(6) There is no report or evidence of Mr Jimmieson not coping with his official duties in the Queensland Fire Service since leaving the RAN, at least until the diagnosis of depression in 1989 and a subsequent suicide attempt.

26. Mr Jimmieson now frames the basis of his claim as being that he was unable to obtain appropriate clinical management for his condition while undertaking defence service.
27. The fundamental legislative provisions are contained in s 70(1) and (5) as follows:

s 70 Eligibility for pension under this Part
(1) Where:
...
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
...
(d) in the case of the incapacity of the member--pension by way of compensation to the member;
in accordance with this Act.
...
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
            (a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
... or
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of 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 defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or...

28. It is also apparent that in order for the Commonwealth to be liable to pay compensation under s 70(1) of the Act, the Tribunal must decide according to its “reasonable satisfaction” (the appropriate standard of proof (s 120(4))). That standard is explained further in this case in s 120B(3) which shows: there must be a connection between the relevant disease and defence service; and, if there is a SOP released by the Repatriation Medical Authority under s 196B(3), certain factors specified must be in existence for the claimed condition to be able to be related to defence service. That is further defined in s 196B(14) that a factor will be related to service if “... it arose out of, or was attributable to, that service”. That definition is effectively identical with that in s 70(5) which relates to the Commonwealth’s obligation to pay compensation. In respect of the connection between a disease and defence service, a “disease” is defined in s 5D(1) as “... any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)...”.
29. Section 5D(2) refers to an incapacity from war caused or defence caused injury or disease as being “... a reference to the effects of that injury or disease and not a reference to the injury or disease itself”. With that definition in mind, the crucial question in the evidence here, was when could it be said that Mr Jimmieson’s acknowleged condition of alcohol abuse commenced. In that regard I turn to the first of the identified issues in this case – clinical onset.

ISSUES

ISSUE ONE – CLINICIAL ONSET OF ALCOHOL ABUSE

30. The question to be answered here concerns whether clinical onset of alcohol abuse occurred during the Applicant’s defence service ie. did it occur before or during the period 7 December 1972 until date of discharge in May 1974?
31. Clinical onset refers to when a person becomes aware of symptoms or other indications of a disease which will allow a doctor to make a diagnosis of a disease and when that disease was likely to have commenced or was present (Re Robertson and Repatriation Commission (1998) 50 ALD 668; Repatriation Commission v Cornelius (2002) FCA 750). All of the symptoms of a disease ought be shown to exist (Youngnickel v Repatriation Commission (2004) FCA 1691). However, difficulties occur in the identification of symptoms where a disease develops progressively, such as alcoholism (Re Skene and Repatriation Commission [2004] AATA 782). The question then arises whether there is material before the Tribunal which indicates that any medical practitioner had actually stated that a symptom was present and that a disease was being suffered by a veteran at a particular time, or whether the material before the Tribunal enabled it to make such a finding by inference (Cornelius (supra); Youngnickel (supra)).
32. Here, there is expert evidence of Dr Rees (including oral evidence at the earlier hearing) indicating alcohol abuse was present in 1973 (during defence service); whereas, a contrary view by Professor Jones maintains that the condition developed after defence service. Despite evidence of the Applicant starting to drink heavily in the Navy as evidenced by Professor Jones’ report of 6 September 2007 (page 4), together with his oral evidence on 14 November 2007 (see transcript page 31, lines 6 to 11), Professor Jones’ later report opines that the condition of alcohol abuse did not occur until well after defence service (see report of 21 November 2008).
33. Counsel for the Applicant however says Professor Jones’ evidence is inconsistent and that his earlier report of 6 September 2007 should be relied upon. The Applicant also relies on the Tribunal’s previous assessment.
34. The Applicant also submits that he was deprived of the opportunity to obtain appropriate clinical management whilst in the defence service. It was argued that this resulted in a worsening of his drinking problem and, ultimately led to alcohol dependence. The Applicant’s Counsel therefore submits that Mr Jimmieson’s defence service made a material contribution to his condition and this has continued since that time, resulting in alcohol dependence.
35. The findings in my previous Decision were based on acceptance of the evidence of Professor Jones relating to the Applicant’s claims for operational service. I said at paragraph 36 “... I accept Professor Jones’ explanation of the personality factors as triggering early discharge and that the consequential effects have resulted in a chronology of alcohol abuse then alcohol dependence and subsequently a major depressive disorder. PTSD has emerged subsequently as a delayed onset type, as described by Dr Rees”. The clinical onset of alcohol abuse in relation to Defence Service has not really been clarified by the additional expert evidence received at the present hearing. The Applicant says Professor Jones’ evidence was inconsistent. I must say that while his explanation of the psychiatric evidence based on the incidents claimed and linked to operational service were more logical and objective, his evidence on this occasion, particularly in relation to the onset of alcohol abuse in relation to defence service, was less convincing for a number of reasons:

(1) He admitted a fundamental error in his second report that alcohol dependence predated alcohol abuse. All evidence to date, including his previous evidence, showed the reverse order. It must be acknowledged however, that could easily have been a simple error missed in proof-reading. It is an inconsistency but not an error, or itself, of great consequence.

(2) His second report, in my view, would have earned more weight had he taken the opportunity of interviewing Mr Jimmieson again. Professor Jones said he recalled Mr Jimmieson very well. But I doubt this, as, Professor Jones could not recall having given evidence in this matter at the first hearing some 12 months ago.

(3) Professor Jones referred to the Applicant having “alcoholism”. He used this term to cover both alcohol abuse and alcohol dependence. Some literature refers to the use of that term in that way. However, in cross examination, Professor Jones said, defensively, that alcoholism was not referred to in DSM-IV, when referring to the adequacy of his written response to the second question on page 10 of his report dated 6 September 2007. Alcohol abuse and Alcohol Dependence are referred to in both editions – in DSM-IV (Item 305.00 at page 196, and Item 303.90 at page 195) and in DSM-IV-TR (Item 305.00 at page 214, and Item 303.90 at page 213), and are the specific conditions under review here. His explanation in differentiating these terms is not supported by other evidence provided.

(4) On the one hand, Professor Jones accepts that Mr Jimmieson was drinking over two litres of beer per day in 1973 (over twice the safe level of drinking now prescribed). But, on the other hand, he maintains Mr Jimmieson’s drinking did not equate to Alcohol Abuse. I was unable to accept his evidence in this regard as the heavy drinking in 1973 and the chronology of subsequent life patterns was not consistent with the conclusions he reached with respect to that period.

(5) Professor Jones’ view was that if naval service had been the cause of the onset of such heavy drinking, he would expect that Mr Jimmieson would have presented for treatment much earlier. This conclusion is difficult to accept in the context of Professor Jones’ acceptance of Warrant Officer Rigby’s evidence (which is consistent with statements of four other former RAN personnel) that there was a culture or entrenched practice of heavy drinking and not to report for treatment.

(6) Professor Jones based his opinion in part, on the absence of adverse reports of performance by the Applicant in the RAN. However, his conclusions here were not qualified by his acceptance that there was a culture of heavy drinking, with a high tolerance of this behaviour by those who would be in reporting positions. I doubt if much can be made of an absence of adverse reports.

(7) Professor Jones discounted genetic influence in Mr Jimmieson’s drinking. He said if there was, it did not explain why Mr Jimmieson did not seek treatment shortly after leaving the RAN. This seems contrary to his evidence that he would not expect any genetic effect to be noticeable after 4 or 5 years but would be more likely to be noticeable after 20 years. His evidence of an expected chronology of effects of drinking compared with his expectation of seeking treatment shortly after leaving the RAN (only a short number of years after heavy drinking commenced), is not readily reconcilable.

36. On the basis of the above I find that clinical onset occurred by 1973 during defence service. And, I accept Dr Rees’ opinion as the preferred view based on the evidence in respect of a claim of onset of alcohol abuse during the period of defence service. I so find because of the level of drinking (accepted by Professor Jones and Dr Rees) which commenced in 1971, and taking account of the other indicia of early discharge in 1974, marital breakdown in 1980 (due to heavy drinking by the Applicant), a suicide attempt also in 1980, and continual heavy drinking ever since that time. I find that it is a “disease” which had “gradual development” (s 5D(1) of the Act) and which commenced during defence service.

ISSUE TWO – INABILITY TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT

37. This issue refers to Factor 6(i) of Statement of Principles (SOP) Instrument No 18 of 2008 – Alcohol Dependence and Alcohol Abuse:

(i) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

38. It is noted that SOP Instrument No 2 of 2009 has been issued since the date of the hearing which supersedes the above SOP. The wording of the relevant factor (Factor 6(k)) in the latest SOP is identical and therefore the latest change is immaterial to the outcome of the present case.
39. That factor must be pointed to by the evidence before the necessary connection with relevant service can be said to exist. It applies only to a material contribution to or aggravation of, alcohol abuse in circumstances where the condition of alcohol abuse “... was suffered or contracted before or during (but not arising out of) the person’s relevant service”. So much is made clear by paragraph 7 of the SOP. It must be assessed according to a medical scientific standard (not a lay standard) and there must be evidence of a clinical worsening of the disease as defined in the SOP. In other words, there must be evidence of “...clinically significant impairment or distress” as manifested by at least three of the factors shown in the definition (Repatriation Commission v Milenz [2006] FCA 1436; (2006) 93 ALD 107). I accept there is a clinical worsening of the condition as defined in the SOP and based on Dr Rees’ diagnosis.
40. The Applicant’s case now is that he could not get appropriate clinical management and that has caused the escalation of alcohol abuse to alcohol dependence over a long period of time.
41. Factor 6(i), read with the opening paragraph 6 and with the qualification in paragraph 7, requires 3 pre-conditions to be satisfied:

(1) alcohol abuse must have existed during military service; and

(2) there must have been an inability to obtain appropriate clinical management because of that military service (factor 6(i)); and

(3) pre-condition (2) must have resulted in a material contribution to or an aggravation of the condition.

This is to be adjudged according to the standard specified as “on the balance of probabilities” (Factor 6).

42. Despite my being satisfied that clinical onset of alcohol abuse occurred during defence service, this current ground must be assessed as submitted by the Respondent ie. “... as a matter of practical reality” (Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80 at 87 at [25]). Merkel J said that the approach to be adopted should consider “... objective barriers such as lack of power, capacity or means or a subjective barrier such as the condition of being unable. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends on the facts of that case” (at [26]). Heerey J said “Clearly the factor operating on the person’s choice would have to be a substantial one before it could be said there was “inability”. How substantial is a question of fact, and not capable of definition a priori” (at [3]).
43. The Applicant refers to a culture of heavy drinking. Five testimonies of former Navy personnel are provided in support. Professor Jones accepts that that was the culture in the services in the 1970s and particularly with groups of young men. He referred to it as being seen as ‘an index to manhood’.
44. While that evidence is uncontested, it is general evidence and does not sheet home to Mr Jimmieson any inability to obtain clinical management. Nor does it provide any basis to draw an inference that there was an inability to obtain clinical management. A culture where members generally may be reluctant to seek treatment cannot be extended to give it an illogical meaning.
45. Mr Jimmieson has clearly, as Professor Jones put it, been “resistant” to alcohol for some time and has coped well with it both in the defence service and subsequently in the fire service.
46. The requisite inability to obtain appropriate clinical management is that the member must feel unable to, or be prevented because of a service reason, from seeking treatment. In the circumstances I find there is no substantial evidence of an objective barrier to Mr Jimmieson obtaining treatment, nor was there a lack of appropriate clinical management which was available to Mr Jimmieson. The only subjective barrier was a general reference in the first hearing to personality factors and this was not prosecuted by any party in relation to this issue. The claim on this second issue must therefore fail on the balance of probabilities as pre-conditions (2) and (3) in paragraph 41 cannot be satisfied.

ISSUES THREE AND FOUR

47. In Issue Two, I found no “inability” to obtain appropriate clinical management while Mr Jimmieson was in the Australian Defence Force. Failure to satisfy that requirement means that Issues Three and Four cannot be satisfied.
48. While the Applicant has claimed at this hearing on the basis of an inability to obtain appropriate clinical management, and while I have not found evidence to support a claim on that basis, the fundamental question is still whether the condition arose out of or was attributable to defence service (s 70(5)). I have found that alcohol abuse had its clinical onset during the period of defence service ie. either before or during the period 7 December 1972 to 9 May 1974.
49. The words “arose out of or been attributable to” has been held to satisfy a connection with defence service “... if some less proximate causal relationship is established” (Repatriation Commission v Law [1981] HCA 57; (1980) 31 ALR 140 at 150). When that case was heard on appeal by the High Court of Australia, it was emphasised that the above quotation by the Federal Court referred to causation and that it would be sufficient “if the cause was one of a number of causes provided that it was a contributing cause ...” (Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 at 648). While the above authorities were considering identical words used in s 8 of the Act, the words in s 70(5) have been more recently considered. In Roncevich v Repatriation Commission (2003) 75 ALD 345 at [27], the Federal Court held that the interpretation involves a relatively broad test although it was not to be viewed “... whether the relevant act ... was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate”. It is clear therefore a temporal condition will not be sufficient (Roncevich (supra) at [23, 27 and 55]).
50. The application of the principles involved in those authorities involves cases where it was held that alcoholism was integrally connected with the stress of service as well as the culture of drinking to excess (Re Lindsay and Repatriation Commission (1995) 39 ALD 108). However, there was no integral connection in Re Penhall and Repatriation Commission (1992) 28 ALD 261, where the evidence revealed nothing other than the ordinary and unexceptional incidents whilst serving in the Royal Australian Air Force in Australia and overseas, apart from a claim of a culture of excessive use of alcohol. In that case, it was held that there was a connection with service which was “in the course of” service but that a greater degree of connection is necessary for it to be “attributable to” defence service. In other words, it satisfied a temporal connection but not a connection of sufficient proximity as required by s 70(5)(d) of the Act. I find the evidence in this case requires a like finding in relation to the statutory provisions, as, despite onset during the period of defence service, the Applicant’s condition does not satisfy the causal connection. There was no inability to obtain appropriate clinical management related to defence service as claimed. The application by Mr Jimmieson therefore fails.
51. In the circumstances therefore the decision under review is affirmed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: ............[Sgd]............................................................

Joan Torbey, Associate

Date of Hearing 15 December 2008

Date of Decision 12 February 2009

Counsel for the Applicant Mr Nathan Jarro

Solicitor for the Applicant Mr Terence O’Connor

Counsel for the Respondent Ms Helen Bowskill

Solicitor for the Respondent Australian Government Solicitor