Clarke and Repatriation Commission [2010] AATA 77 (3 February 2010)

Last Updated: 3 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4405

VETERANS' APPEALS DIVISION		)
	Re		AUDREY CLARKE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member Dr M E C Thorpe, Member

Date 3 February 2010

Place Sydney

Decision

The decision under review is set aside and instead the Tribunal decides that Mr Clarke’s death was war caused. This decision takes effect from 15 July 2007.

....................[sgd].....................
Ms N Bell, Presiding Member

CATCHWORDS – VETERANS’ ENTITLEMENTS – Claim for war widow’s pension – cirrhosis of the liver - whether war-caused – consideration of statement of principles – existence of factors specified in statement of principles – reasonable hypothesis connecting condition with relevant service

Veterans’ Entitlements Act 1986 (Cth)

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

REASONS FOR DECISION

Ms N Bell, Senior Member

1. Audrey Clarke is the widow of the late Geoffrey Clarke who died on
   20 August 1983. Mr Clarke served in the Australian Infantry Forces from
   19 January 1942 to 31 May 1946 in New South Wales, South Australia, Northern Territory and Queensland. There is no dispute that the whole of his service constitutes operational service within the meaning of the Veterans’ Entitlements Act 1986 (the Act). There is also no dispute that Mr Clarke’s cause of death (or “kind of death”) was, quoting from the death certificate:

a) Massive gastrointestinal haemorrhage – 1 hour;

b) Cirrhosis of the liver with portal hypertension – 5 years; and

c) Alcoholism – 30 years.

2. Mrs Clarke contends that her late husband’s cirrhosis of the liver was caused by his alcohol intake which in turn was caused by his operational service. The Repatriation Commission disputes that Mr Clarke’s alcohol intake was connected to his operational service.

ISSUES

3. There is no dispute that Mr Clarke’s death was caused by cirrhosis of the liver and by alcoholism. This conclusion is supported by the death certificate.
4. It remains for us to consider whether those conditions were war-caused. In doing so we must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP) and considering whether any hypothesis raised by the material before us conforms with one of the factors in the SoP. If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war-caused.
5. In so doing we will follow the steps set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.
6. Mrs Clarke relies on the SoP concerning Cirrhosis of the Liver (No. 107 of 2007). In particular, she relies on factor 6(a):

6. The factor that must as a minimum exist before it can be said thata reasonable hypothesis has been raised connecting cirrohsis of the liver or death from cirrhosis of the liver with the circumstances of a person’s relevant service is:
...(a) for males, consuming at least 110 kilograms of alcohol within any 10 year period before the clinical onset of cirrhosis of the liver; ...

7. The Repatriation Commission concedes that this factor is met. We are satisfied, on the basis of Mrs Clarke’s evidence and medical records, that Mr Clarke’s consumption of alcohol was at the level required and for the period required by the SoP.
8. Therefore, the only issues for consideration are:

i) Was Mr Clarke’s alcohol consumption connected to his operational service?

ii) If so, are we satisfied, beyond reasonable doubt, that the condition is not war-caused?

9. We note that, in accordance with the standard of reasonable hypothesis, we must not engage in fact finding in relation to the first question. Rather, we must consider whether there is material before us that points to a positive answer.

WAS MR CLARKE’S ALCOHOL CONSUMPTION CONNECTED TO HIS OPERATIONAL SERVICE?

10. Together with evidence of Mr Clarke’s heavy alcohol consumption, Mrs Clarke gave evidence that Mr Clarke would become very upset whenever anyone mentioned the war. She also said Mr Clarke would have nightmares and wake in a sweat, shouting “the Japs are coming!”.
11. She said that when asked about the war, he would either ignore the question or would say “Shut your mouth!”. She said he was unsociable and if people visited he would shut himself away. She said he was indifferent to his children and his family and it was not until about 1970 that she met her husband’s step sister,
    Veronica Cameron.
12. Mrs Clarke said Mr Clarke would often verbally abuse her when he was drunk and on one occasion he was physically violent with her.
13. Mrs Cameron gave evidence confirming her statement of June 2009. In that statement she said she lived with Mr Clarke in the family home from the time he was fourteen until he enlisted. She described Mr Clarke as an outgoing young person who was interested in sports and neither smoked nor drank alcohol. She said that when he returned from his service in Darwin he told her that his service was very stressful and that alcohol, which was easily available, helped to calm his nerves. She said he was quiet and morose on his return and if someone mentioned the war to him he would become upset to the point of being abusive.
14. Mrs Cameron said that in the period when she lived with Mr Clarke in the years immediately after the conclusion of the war he would drink every day, going to the pub after work and returning home for dinner quite intoxicated. She said he would bring two quart bottles of beer home with them and drink them in the shed. She said that on Friday nights he would return much later and more intoxicated. She said Mr Clarke became a heavy and constant drinker throughout his life and that this increased as he aged and his withdrawn, intoxicated behaviour became the norm. She said she tried to talk to Mr Clarke about the war but he wouldn’t discuss it. She said it was clear to her that he had an established drinking habit on his return from service.
15. Much was made of Mrs Cameron having signed a statement prepared for her by Mrs Clarke’s solicitor. However, she was firm and consistent in her evidence and we have no reason to doubt the veracity of her statement or of her oral evidence.
16. Mr John Tilbrook, historian, reported that, on the basis of his research,
    Mr Clarke was likely to have been a driver in the Darwin area with
    14 AUST COY AASC and would have been employed on resupply convoys, troop carrying tasks, and docks and rail head transport tasks – all carried out under threat of enemy air attack during 1943. Mr Tilbrook said that during Mr Clarke’s period of operational service in the Northern Territory there was a total of 21 Japanese bombing raids.
17. On the basis of this information, Mr Tilbrook said it was highly likely that Mr Clarke would have witnessed or heard bombing raids targeting Darwin, Fenton, Batchelor, Coomalic and Pell. He noted that reference is made to such raids in the 14 AUST COY AASC unit war diaries and in the HQ war diaries. He also noted that as part of his routine duties Mr Clarke would have delivered supplies, ammunition and construction materials to units and locations damaged by enemy bombing raids. He said Army resupply convoys presented a worthwhile target for enemy aircraft and “this ongoing risk associated with daily convoy routine would have been known to the drivers”.
18. On the question of availability of alcohol, Mr Tilbrook said that beer rations were available to troops serving in operational areas at the discretion of commanders, at “sly grog shops” and at hotels when on leave.
19. In cross examination, Mr Tilbrook was invited to conclude that, as a statistical probability, it was more than 50% likely that Mr Clarke never witnessed, heard or was involved in an air raid. Mr Tilbrook resisted that conclusion.
20. Mr Tilbrook agreed that the beer ration was one pint per day, but the system of coupons that was used for alcohol rations meant that, once outside the operational area, a soldier could purchase beer on tap by pre-purchasing coupons. One coupon obtained one pint of beer.
21. Dr Timothy Anderson, occupational physician, considered it probable that a young man of 20, driving in the Northern Territory at that time, would have feared invasion or air attacks by the Japanese. He considered that, in light of
    Mrs Cameron’s statement that Mr Clarke would become upset when the war was mentioned, and that before service he did not drink but after service he drank heavily, it is reasonable to conclude that his drinking was related to his service.
22. We consider that there is material, in the evidence summarised above, that points to the hypothesis raised by Mrs Clarke: that Mr Clarke was fearful because of his experience or anticipation of Japanese air raids whilst on operational service in the Northern Territory; that consumption of alcohol calmed him; that he continued to consume alcohol in increasing amounts on his return home and until he died; that he continued to be fearful or distressed by his experience or anticipation of Japanese air raids; that he consumed alcohol at the level and for the period required by factor 6(a) of the Statement of Principles; and in conformity with the Statement of Principles his alcohol consumption gave rise to cirrhosis of the liver which was the ultimate cause of his death.
23. We consider this to be a reasonable hypothesis given the evidence before us of Mr Clarke’s statements about the stress of service and the calming effect of alcohol and its plentiful supply during service; the changes in his behaviour when he returned from service and his well established drinking habit; the incidence of air raids during Mr Clarke’s time in the Northern Territory and his exposure as a driver; the likelihood that a young man of 20 in those circumstances, even if not directly exposed to an air raid, would be fearful; the nightmares throughout Mr Clarke’s life after service and his response to mention of the war; and his heavy and constant drinking habit, his aggression and his seclusion.
24. The Repatriation Commission submitted that it was a mere possibility that
    Mr Clarke was exposed to Japanese air raids and it sought to determine the statistical probability of that exposure. We do not consider that to be the right approach to the assessment of a hypothesis raised under the Veterans Entitlements Act. We must look at all of the material before us, find no fact and certainly not find fact on the balance of probabilities. We consider that while some of the facts pointed to may be more probable than others, the hypothesis raised is cohesive and pointed to by the material before us. It is not fanciful or unreal or inconsistent with the known facts. It is reasonable.
25. We venture to add that we would also find the hypothesis reasonable were the material to point to Mr Clarke never having witnessed or been directly exposed to an air raid. There is material before us that points to his having been badly affected by his experience in the Northern Territory and, in particular, by the occurrence of air raids there. The description by Mrs Clarke of his nightmares and his aggression when asked about the war point to this as does the evidence of Mrs Cameron.

ARE WE SATISFIED, BEYOND REASONABLE DOUBT, THAT THE CONDITION IS NOT
WAR-CAUSED?

26. There is no evidence before us on which we may be satisfied beyond reasonable doubt that the condition is not war caused.

DECISION

27. The decision under review is set aside and instead the Tribunal decides that Mr Clarke’s death was war caused. This decision takes effect from 15 July 2007.
    

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell and Dr Thorpe, Member.

Signed:.......................[sgd]....................................................

Associate: Lloyd Doherty

Date of Hearing 10 December 2009

Date of Decision 3 February 2010

Date of written reasons 3 February 2010

Representative for the Applicant Mr Christopher Dwyer, Barrister
Instructed by Ms Elizabeth Dwyer of Kemp & Co.

Representative for the Respondent Mr Stephen Thompson of Sparke Helmore