Lynch and Repatriation Commission [2002] AATA 828 (23 September 2002)

DECISION AND REASONS FOR DECISION [2002] AATA 828

Tribunal Ms G Ettinger Senior Member Dr M E C Thorpe Member

Decision The decision under review of the Repatriation Commission dated 4 June 1997 as affirmed by the decision of the Veterans' Review Board of 22 April 1998 that determined that the death of Ronald Lynch was not causally related to his war service is set aside, and in substitution the Tribunal determines that the death of the Veteran was war-caused, and that a war widow's pension is payable to the Applicant on and from 24 September 1996.

Veterans' Affairs - widow's pension - alcohol consumption initially not disputed by Respondent; later disputed on basis of sibling's evidence - death from cirrhosis of the liver and cardiomyopathy - Statements of Principles applied - whether causal relationship between Veteran's war service, alcohol consumption and death - decision set aside

Veterans' Entitlements Act 1986 ss 5 9 119 120(1), 120(3) and 120A

Repatriation Medical Authority Statements of Principles -

No.5 of 1994 Psychoactive Substance Abuse or Dependence

Budworth v Repatriation Commission and Benjamin v Repatriation Commission (S13/2002 (21 June 2002))

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108

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

23 September 2002 Ms G Ettinger, Senior Member Dr M E C Thorpe, Member

1. The matter before the Administrative Appeals Tribunal ("the Tribunal") was the review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 4 June 1997 that determined that the death of Ronald Lynch ("the Veteran") was not causally related to his war service. The Veterans' Review Board ("the VRB"), affirmed the decision on 22 April 1998. Mrs Evelyn Lynch ("the Applicant"), and widow of Mr Lynch, lodged an application for review which was received by this Tribunal on 6 July 1998. The earliest date of effect is 24 September 1996.

2. Mrs Lynch was represented by Mr A Halstead of the Legal Aid Commission and the Respondent by its advocate, Mr S Modder. Oral evidence by telephone was given by Mrs Lynch and the Veteran's brother, Mr Philip Lynch.

3. The issue before the Tribunal was whether the late Veteran's death was war-caused pursuant to section 9(1) of the Veterans' Entitlements Act 1986 ("the Act").

4. The Veteran rendered operational service in the Australian Army ("the Army") in Korea from 20 March 1954 to 9 November 1954. He died on 23 September 1996 from:

* "a) End stage congestive heart failure 6 weeks;

5. As the Veteran served on operational service, this matter falls for determination pursuant to sections 120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). That requires a reasonable hypothesis to be raised connecting the Veteran's death with his war service that is not dispelled beyond reasonable doubt. The relevant sections are as follows:

120 (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran_, or of the death of a_ veteran_, relates to the operational service rendered by the_ veteran_, the_ Commission shall determine that the injury was a war-caused injury_, that the_ disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

120(3) In applying sub-section (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."

6. As the application was lodged after 1 June 1994, pursuant to section 120A of the Act, the Tribunal is required to apply the relevant Statements of Principle ("SoP") in determining whether the hypothesis is reasonable. Pursuant to the decisions in Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 and Repatriation Commission v Gorton [2001] FCA 1194, the Tribunal is able to take into account the accrued rights of the Applicant, by applying the SoP in force at the time when the primary decision was made, or ones which applied at the time of the present decision making.

7. Relying on the Applicant's accrued rights, the SoP applicable in determining this matter was Instrument No.5 of 1994 concerning Psychoactive Substance Abuse or Dependence. The Applicant sought to rely on factor 1(a) viz:

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

"Stressful event" is defined in the Instrument to mean -

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

8. At a resumed hearing, the Applicant made submissions that the relevant SoPs were Instrument No.93 of 1996 and No.19 of 1998, concerning Cardiomyopathy and Instrument No.75 of 1996 and No.35 of 1998 concerning Cirrhosis of the Liver.

"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cirrhosis of the liver or 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) within any 10 year period before the clinical onset of cirrhosis of the liver; or"

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

(b) for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; or"

10. In making its determination, the Tribunal must have regard to section 9(1) of the Act::

(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

11. The matter first came on for hearing on 8 November 2001, where the report of Mr J Tilbrook dated 23 December 2000 was tendered, and became Exhibit R2 before the Tribunal. The hearing was adjourned for the Applicant to produce certified copies of letters Mr Lynch had sent to her during his operational service, and for the Respondent to lodge a further historical research report. Accordingly, the letters were tendered and became Exhibit A7 before the Tribunal and the report of Mr J Church dated 16 January 2002 was lodged with the Tribunal. The lodging of Mr Church's report was followed by a Directions Hearing listed for 5 February 2002 to deal with admissibility of parts of the report and taking into account objections raised by Mr Halstead on behalf of the Applicant.

12. Mr Halstead objected particularly to paragraphs 5, 6, and 7 of that report which dealt with Mr Church's opinions about certain events. The report was subsequently tendered in full and became Exhibit R3 before the Tribunal. In considering the report, the Tribunal was mindful that it is not bound by the rules of evidence (section 33(1)(c) of the Administrative Appeals Tribunal Act 1975), and clearly must take into account relevant material and accord the report certain weight (Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139).

13. A resumed hearing took place on 3 April 2002 and due to the fact that the Applicant opened with submissions that alcohol consumption was no longer an issue, and that the relevant SoPs in this matter were those dealing with Cirrhosis and Cardiomyopathy, the hearing was adjourned for Mr Modder to consider the Respondent's position. Written submissions of both parties followed.

14. To clarify matters, the Tribunal notes here that Instrument No.5 of 1994 dealing with Psychoactive Substance Abuse or Dependence was considered the relevant one at the time of the first hearing. Indeed the first hearing opened with the parties agreeing that it was simply a matter of whether, applying SoP No.5 of 1994, Mr Lynch suffered a stressor during his operational service. The Tribunal was mindful that pursuant to Keeley (supra) and Gorton (supra) the later SoP Instrument No.76 of 1998 Alcohol Dependence or Alcohol Abuse could also have been relevant if more beneficial.

15. At the resumed hearing, Mr Halstead submitted that the relevant SoPs were Instrument No.93 of 1996 and No.19 of 1998, concerning Cardiomyopathy and Instrument No.75 of 1996 and No.35 of 1998 concerning Cirrhosis of the Liver.

16. The making of the decision is of course still based on the evidence before the Tribunal including the medical report of Dr Miller and the evidence of the lay witnesses, and taking into account the closing submissions of the Applicant received 27 May 2002 and those of the Respondent dated 24 April 2002 and 31 May 2002 as well as the legislation and any relevant case law.

17. At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The following evidence was tendered on behalf of the Applicant and Respondent -

Medical Report of Dr M Miller 16 December 1998 Exhibit A3

Medical Report of Dr M Miller 9 June 1999 Exhibit A4

Letters of Mr Lynch to his wife under cover of letter of A Halstead 20 November 2001 Exhibit A7

Statement and Documents prepared pursuant to section 37 Administrative Appeals Tribunal Act 1975 Folios T1 - T28 Exhibit R1

Report of J Church, Writeway Research Service 16 January 2002 Exhibit R3

Letter of J Church to Department of Veterans Affairs 15 February 2002 Exhibit R6

Respondent's Submissions 5 February 2002 Exhibit R7

18. Mrs Lynch whose date of birth is 15 December 1935, and whose statement of 26 October 1998 was tendered before the Tribunal (Exhibit A1) gave oral evidence by telephone. In reply to the Tribunal's question regarding her non-attendance Mr Halstead said, "My instructions are she simply can't get here."

19. There was no application made to the Tribunal with regard to her non-attendance in person, and the Tribunal was not impressed by her excuse, which was that she "not real good", blood pressure being the reason. She said she had decided the week before the hearing not to attend, providing ample opportunity for an application to have been made.

20. Mrs Lynch gave evidence that she had met her husband in July 1953 in Brisbane and married him in January 1954. She said that prior to his departure in to the Army, he hardly drank alcohol at all, only one or two drinks on special occasions.

21. Mrs Lynch said that her husband wrote to her frequently from Korea and indeed copies of the letters were admitted as Exhibit A7 before the Tribunal. Mrs Lynch said that the Veteran wrote to her about being hospitalised in Korea for a week due to back problems.

22. Mrs Lynch's evidence included reading extracts from her husband's letters some of which follow:

... This is my first day in this God forsaken place. I think there couldn't be any worse place in the world to come to."

Letter of 1 May 1954: "Last week we were out on a recognisance trip. I averaged about three hours sleep a night. I had to get up at 3 o'clock every morning. Also there was a divisional exercise on too and 9 drivers were killed in the accident, plus the roads are terrible."

Letter of 11 May 1954: "Last night we were on the battalion guard and I didn't sleep a wink. I think something has gone wrong with me lately. I can't seem to sleep properly of late. On top of that I've just been warned to be prepared to move out at 1800 tonight to drive the battalion sergeant on a night regie."

Letter of 30 June 1954: "But there were a few large explosions being set off over the back. It sounds like 3 inch mortar bombs. I reckon they must be having a practice shoot."

Letter of 31 August 1954: "Cripes, this hot weather is holding on here. There has been six chaps collapsed and died from three battalions through heat exhaustion."

23. Mrs Lynch gave evidence that when her husband returned home, he had changed, was drinking heavily and became irritable. He was no longer "happy go lucky" as he had previously been. She said that her husband drank when he was out, and arrived home very much "under the weather" most days_._ They had five children and she remembered he had a back operation in approximately 1957. Mrs Lynch said that her husband continued to drink heavily but underwent a program called "Steps" in the 1980s and ceased drinking for some six months. Later he resumed his drinking at a similar level, (e.g. 12 beers a day or two litres of wine), although he had a couple of other short periods of abstinence, she said. Mrs Lynch said that she tried to talk her husband into stopping his alcohol consumption and in fact left him on two occasions because of his non-response, in approximately 1958 and in the late 1960s.

24. Mrs Lynch said she did not know about any drinking her husband had engaged in before they met, for example when he was shearing. When asked by Mr Modder why she had written at paragraph 16 of her statement (Exhibit A1), "I have no doubt in my mind that my husband drank alcohol and smoked cigarettes in order to relieve the pain he suffered as a result of his back condition", Mrs Lynch replied that that was her impression.

25. Mrs Lynch also replied to Mr Modder in cross-examination that she thought her husband enjoyed his military career, was promoted several times, and finally left the Army in 1967 after fifteen years, ranked a sergeant.

26. Mrs Lynch gave replies to questions in cross-examination which indicated Mr Lynch had been a hardworking farmer after his discharge. In fact her statement (Exhibit A1), indicated they had been on the land, first on a dairy farm and then from 1980 they ran sheep and cattle on a property "Allandale" where Mrs Lynch still resides.

27. In reply to Dr Thorpe of the Tribunal, Mrs Lynch said that her husband did not consult any psychiatrist about his problems. He had also not spoken to her about any conflict he had encountered in Korea.

EVIDENCE OF MR P LYNCH - BROTHER OF THE VETERAN

28. Mr Lynch, older brother of the Veteran, whose statement dated 12 August 1999 was before the Tribunal as Exhibit A2, gave evidence by telephone link.

29. He said that his brother was ... "average, ordinary and just one of the fellows in the social life in the area ... here in Gilgandra ..." The witness said that before Korea, he had seen the Veteran drunk, but not very often, "he was more of a social drinker". Mr Lynch said that on his return from Korea the Veteran had changed and was not as sociable or friendly as before and more quarrelsome, a very unsociable drinker. He said that:

"As a matter of fact he was such a drunkard that I wouldn't drink with him ... I noticed he had a cigarette in his hand all the time ... Yes, there was a big difference in his personality."

30. Mr Lynch also explained his brother had told him of "hideous sights" and brutality he had seen in Korea. In cross-examination Mr Lynch replied to Mr Modder that the Veteran had not said he was actually shooting bullets, and also that Mr Ronald Lynch had told him about the use of Agent Orange but indicated he had been sworn to secrecy.

31. As to the Veteran's drinking post Korea; Mr Lynch was not able to comment in detail because as he said, his brother moved to Queensland. Neither was he able to comment on whether there was a connection between the Veteran's drinking and his back condition.

STATEMENT OF MS M HANCHARD - DAUGHTER OF MR AND MRS LYNCH

32. The statement of Ms Hanchard dated 25 October 1998 was before the Tribunal as Exhibit A5. She was not called to give oral evidence.

33. Ms Hanchard stated at paragraph 4 of her statement that her father had a bad back and was unable to play football, cricket or other active games with the children when they were growing up. She also said that in the 1980s her father significantly increased his alcohol consumption, drinking some 10 cans of Tooheys beer a day and later switched to wine, drinking one litre of cask wine a day. She wrote regarding her impression that her father's alcohol and cigarette consumption was to deal with pain from his back condition resulting from an accident during service in Korea.

STATEMENT OF MR D LYNCH - SON OF MR AND MRS LYNCH

34. Mr Lynch whose statement of 21 October 1998 was before the Tribunal as Exhibit A6 was not called to give oral evidence.

35. His statement detailed his involvement with his father in share farming from 1975. He stated that he had noticed during 1968 - 1975 that his father had drunk on occasions, but that he was a very hard worker who did not drink on the job. He stated that he noticed increased drinking later on. Mr Lynch said that he went off shearing and when he returned to "Allandale" in 1984, he noticed his father's condition had deteriorated, his mood was angry and his drinking had increased.

36. Mr Lynch stated: "I was very close to my Father and it is my firm belief that the increase in his drinking was a direct result of the frustration and pain caused by his physical disabilities."

STATEMENT OF DR M MILLER - CONSULTANT PHYSICIAN

37. Dr Miller whose statement of 9 June 1999 was before the Tribunal as Exhibit A4 was not called to give oral evidence. His previous report was dated 16 December 1998, and commented on Mr Lynch's cardiomyopathy, liver disease and death, about which he opined as follows:

"I have no doubt Mr Lynch's death was significantly contributed to by his long standing alcohol abuse and, from the history of Mrs Lynch, this commenced after his service in Korea. I consider that the alcohol abuse contributed to his cardiomyopathy that contributed to his terminal heart failure."

38. Dr Miller had been asked to comment on the stressor required for Mr Lynch to satisfy the tests in Instrument No.5 of 1994, which prompted him to ask for further information. He wrote his supplementary report (9 June 1999), based on further documentation obtained from the Army and concluded that Mr Lynch satisfied the tests in Instrument No.5 of 1994.

39. The Tribunal has noted Dr Miller's medical assessment of Mr Lynch but does not give weight to the medical opinion on legal issues.

40. Mr Tilbrook whose report of 23 December 2000 was before the Tribunal as Exhibit R2, was not called to give oral evidence. He noted in his report that hostilities ended in Korea on 27 July 1953, some eight months prior to Mr Lynch's arrival there. He was invited to comment on Mr Lynch being exposed to a stressor in relation to the relevant SoP.

41. Mr Tilbrook detailed Mr Lynch's training in the Army and summarised his operational service, noting that he was employed as a non-combatant driver and mechanic located in Peace Camp some distance from the Demilitarized Zone. Mr Tilbrook also gave details of Mr Lynch being hospitalised 1 - 5 June 1954 and a number of offences he committed during his time in Korea which are not relevant to matters before this Tribunal.

42. Mr Tilbrook stated that the only incident which was reported by Mr Lynch's unit during its service in Korea in 1954/5 occurred on 18 September 1954 when Mr Lynch was undergoing detention and absent from the unit.

43. Mr Church's report of 16 January 2002 was before the Tribunal as Exhibit R3. His Curriculum Vitae was before the Tribunal as Exhibit R4, a further report dated 11 February 2002 as Exhibit R5, and a letter from Mr Church to the Department of Veterans' Affairs of 15 February 2002, Exhibit R6.

44. In his report at Exhibit R3, Mr Church discussed his findings with regard to various alleged stressful episodes which Mr Lynch had experienced in Korea. Mr Church concluded that some of the claims had been exaggerated, but that one member of Mr Lynch's group at 3 RAR died of heat exhaustion in July 1954.

45. Mr Church's report of 11 February 2002 (Exhibit R5) had an attachment entitled "British Commonwealth Forces in Korea - Periodic Report No.6 April 1954 - 30 September 1954" including traffic accident details and other matters related to the period specified in the report. The contents of the above have been noted but are not of particular assistance in coming to a conclusion in this case.

46. In order to come to the correct and preferable decision, the Tribunal must take into account all the evidence, submissions, case law and legislation to decide whether Mr Lynch's death on 23 September 1996 was war-caused within the terms of section 9(1) of the Act. The Tribunal noted that he served his country on operational service from 20 March 1954 to 9 November 1954 in Korea.

47. The emphasis in this case has, as mentioned above, changed a number of times, and hence the opportunity was given for the parties to make their final closing submissions in writing. Originally the emphasis from the Applicant was on alcohol consumption and meeting the stressor in Instrument No.5 of 1994, and the closing submissions at the first hearing were concentrated on demonstrating that Mr Lynch had suffered a stressor in satisfaction of the relevant SoP.

48. At the resumed hearing, Mr Halstead submitted that the Applicant no longer relied on the stressor and alcohol abuse to meet the requirements of the SoP, and submitted that the relevant SoPs were Instrument No.93 of 1996 and No.19 of 1998, concerning Cardiomyopathy and Instrument No.75 of 1996 and No.35 of 1998 concerning Cirrhosis of the Liver, where only the quantity of alcohol consumption was relevant to meet the tests.

49. Initially the parties had agreed on the amount of alcohol that Mr Lynch had consumed, Mr Modder querying only causation. In the final written submissions of the Applicant, (27 May 2002), Mr Halstead submitted that the SoPs for Cardiomyopathy and Cirrhosis of the Liver did not require the Veteran to have been suffering alcohol dependence or alcohol abuse, only to have consumed the specified quantity of alcohol, which the Tribunal noted was 250kgs within any 10 year period before the clinical onset of secondary cardiomyopathy, or in the case of cirrhosis of the liver, 150kgs of alcohol during the ten years before onset of the disease (SoP Instrument No.93 of 1996 and No.19 of 1998, concerning Cardiomyopathy and Instrument No.75 of 1996 and No.35 of 1998 concerning Cirrhosis of the Liver).

50. Ultimately, in determining whether the Veteran's death from cardiomyopathy and cirrhosis of the liver was causally related to his service in accordance with sections 120(1), 120(3) and 120A of the Act, the Tribunal must follow the steps as outlined by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 as follows:

"...the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:

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

2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

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

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

51. With respect to determining when a hypothesis is reasonable, the Tribunal noted Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 and approved in Deledio (supra):

"Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i) contrary to proved or known scientific facts,

(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt."

52. The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material raised an hypothesis connecting Mr Lynch's death from cardiomyopathy and cirrhosis of the liver with his war service. It was their onset, conformity with the relevant SoPs, and the decision whether they were war-caused pursuant to the legislation which were in issue.

53. As already stated, the Tribunal accepted that Instruments No.93 of 1996 and No.19 of 1998, concerning Cardiomyopathy and Instruments No.75 of 1996 and No.35 of 1998 concerning Cirrhosis of the Liver were the appropriate SoPs to be applied to Mr Lynch's case.

54. The Applicant raised the following hypothesis for consideration by the Tribunal:

* The Veteran suffered a distressing period of service in Korea which caused him to substantially increase his alcohol consumption from occasional to abusive;

* He later also used alcohol to relieve pain experienced from his war-caused back condition;

* The Veteran's sustained heavy alcohol consumption eventually caused him to suffer, and later die from cardiomyopathy and cirrhosis of the liver.

55. Mr Halstead also submitted that the level of alcohol consumption was not disputed by the Respondent which I noted was correct initially. However in its final closing submissions (Paragraph 5, 31 May 2002), the Respondent disputed this:

"The Respondent has hitherto not challenged the quantity of alcohol consumption, simply any causal relationship to service. However a close inspection of all the documents suggests a far more complex picture. In particular the Veteran himself advised treating doctors that his alcohol consumption had decreased by 1980, and that by 1990 his intake was occasional, with 2-3 glasses of wine (see folios 68, 73 and 90).

Further, the evidence as it is strongly suggests such abuse well before operational service, even on the evidence of the Veteran's brother, who testifies to obnoxious behaviour on his brother's behalf well before the Veteran even joined the Army (transcript pp.28-29) ..."

56. The Tribunal, applying all the evidence before it, and without fact finding, considered that the material mentioned above raised a hypothesis linking Mr Lynch's alcohol consumption and death from cardiomyopathy and cirrhosis of the liver with his war service.

57. The Tribunal then moved to determine whether the hypothesis raised was reasonable by applying the relevant Factors in SoPs Instruments No.93 of 1996 and No.19 of 1998, concerning Cardiomyopathy and Instruments No.75 of 1996 and No.35 of 1998 concerning Cirrhosis of the Liver. The relevant Factors were Factors 5(b) in the SoPs concerning Cardiomyopathy which stated that "for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; or..." and Factor 5(a) in the SoPs concerning Cirrhosis of the Liver which stated that: "for men, consuming at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver; or ...".

58. In order to consider whether Mr Lynch's alcohol consumption met these tests, the Tribunal had to consider all the evidence regarding his alcohol consumption, claimed stressful service and back problems, and consider whether it was fanciful, impossible, absurd or otherwise too remote and not tenable amongst others things, to have the hypothesis declared reasonable linking the Veteran's death to his war service. It was not simply a temporal connection but a causal one which had to be made.

59. Dealing first with the alcohol consumption; the Tribunal noted the submission of Mr Halstead that the Veteran drank at least 180 grams of alcohol a day or about 650kgs of alcohol within a ten year period which he submitted exceeded the requisite quantities for all the relevant SoPs. He submitted that the periods of alcohol consumption predated the onset of each condition that ultimately caused Mr Lynch's death.

* Mrs Lynch gave evidence that: the Veteran drank little or no alcohol prior to service in Korea;

* There was no evidence before the Tribunal of alcohol abuse by the Veteran prior to his period of operational service;

* The Veteran was a heavy drinker when he returned from Korea and continued to drink heavily until the time of his death;

* The Veteran's cardiac condition was present from 1976, and given the heavy consumption noted above, he had been drinking heavily for the twenty years previous to that;

* Abnormal liver function was detected in 1990 by which time the Veteran had consumed more than the required 150kgs in the ten year period previous to that;

* Letters written by Mr Lynch to his wife from Korea indicated he had a depressed state of mind as a direct result of his service;

* Mrs Lynch had provided evidence of a direct link between the Veteran's back pain and his level of alcohol consumption; corroborated by Darryl Lynch and Marcia Hanchard who stated that the Veteran continued using alcohol to relieve back pain well into the 1980s.

* The Respondent, relying on the evidence of Phillip Lynch, did not consider that the Veteran drank little or no alcohol prior to operational service, adding that Mrs Lynch lived with him for only a short time before his service in Korea. She had stated that she had no knowledge of his drinking habits as a shearer pre 1953;

* Mr Lynch's alcohol consumption had decreased by 1980, and by 1990 his intake was occasional (folios 68, 73 and 90);

* Relying on the evidence of his brother, alcohol abuse was well underway before the Veteran even joined the Army;

* Confidential reports (CR3) indicated a conviction for offensive behaviour well before enlistment. Mr Modder submitted that such incidents amounted to strong circumstantial evidence leading to an inference that the Veteran abused alcohol long before his operational service.

* The Respondent relied on medical records dated 1973 and October 1990 to submit that Mr Lynch had reduced his drinking.

* Mr Tilbrook's and Mr Church's research reports indicated that Mr Lynch served in Korea after the cessation of hostilities in July 1953, and there was no indication of anything eventful occurring, and no evidence the Veteran was depressed as a direct result of his service;

* There was no evidence to link Mr Lynch's drinking with his back pain. Notwithstanding some record of intermittent back pain after 1962, Mr Lynch worked as a sleeper cutter until age 58 in October 1987.

62. The Respondent submitted that the Applicant failed to satisfy step 3 in the Deledio test and failed to raise a reasonable hypothesis.

63. The Tribunal taking into account the submissions of the parties and all the evidence holds that a reasonable hypothesis exists linking Mr Lynch's death from cardiomyopathy and cirrhosis of the liver with his drinking in war service. The Tribunal does not find such hypothesis to be contrary to proved or known scientific facts, neither too fanciful, impossible, remote or too tenuous. The conditions to which Mr Lynch succumbed are well known to be related to alcohol consumption, and whilst there is argument between the parties regarding the exact amount of consumption, there is no doubt he commenced serious drinking and drank a large quantity of alcohol in the requisite time, commencing particularly on service in Korea. On the basis of the raised facts the Tribunal accepts that although it cannot calculate the exact amount from the data before it, the amount consumed was in excess of the requirements in Factors 5(a) and 5(b) in the relevant SoPs, and therefore fits the template of the relevant SoPs.

64. The Tribunal moved then to consider the tests in sections 120(3) and 120(1) of the Act. The Tribunal considered the competing evidence of the parties regarding the onset of Mr Lynch's drinking problem, and the amounts he consumed. The Tribunal accepted the evidence of Mrs Lynch who said that when she first met her husband in July 1953, he "would only drink alcohol on special occasions or on occasions when we went out" (paragraph 2, Exhibit A1). It is true they married in January 1954, and that he went to Korea only two months later, and that Mrs Lynch did not know of his drinking habits while he was a shearer. However the Tribunal was satisfied with Mrs Lynch's evidence that he drank little before he went to Korea and that he was a changed person when he returned. Mr Lynch's brother Phillip also said that Mr Lynch came back from Korea a different person, "drinking heavily".

65. As to stress during service; it is accepted that hostilities ceased before Mr Lynch went to Korea, (noting the researcher's reports), but the Tribunal puts weight on the Veteran's letters to his wife (Exhibit A7) as primary evidence of his feelings of despondency at the time.

66. The Veteran's wife, brother and children, Darryl Lynch and Marcia Hanchard, stated that he drank to relieve his back pain. It is noted that Mr Lynch injured his back during service and that he had a fusion carried out in 1957. The Tribunal noted that the Respondent raised doubts with its submission that the Veteran was able to work as a sleeper cutter for some years after discharge but it was not satisfied that this proved beyond reasonable doubt that the Veteran's heavy level of alcohol consumption was not caused by service in Korea, and accepted that he drank to relieve his back pain.

67. The Tribunal was mindful of Mr Modder's submissions that Mr Lynch was disciplined for being absent from duty without permission during his time in the Army before he went to Korea, but unless there was alcohol specified in the reports as there was on one or two occasions, it would be purely speculative to associate alcohol consumption with those absences.

68. The Tribunal accepted the submissions that the Veteran's cardiac condition was present from 1976, and given the heavy consumption noted above, he had been drinking heavily for the twenty years previous to that. Abnormal liver function was detected in 1990 by which time the Veteran had consumed more than the required 150kgs in the ten year period previous to that. In confidential records made available during the hearing and not included in the T-documents, there is reference to compulsive drinking in 1963, and a reference to it getting worse. The Tribunal also recalled Mrs Lynch's evidence that her husband had attempted to stop drinking, including undertaking the "Steps" program in the late 1980s which assisted for approximately six months.

69. The Tribunal having found that on the raised facts there is a reasonable hypothesis that the Veteran's alcohol consumption had increased to levels to conform with the relevant SoPs, finds that this hypothesis has not been disproved beyond reasonable doubt by any submissions or evidence produced by the Respondent. Accordingly, the Tribunal is, applying sections 120(3) and 120(1), satisfied beyond reasonable doubt that Mr Lynch's death was war-caused.

70. Moreover, pursuant to section 120(1), the Tribunal is not satisfied beyond reasonable doubt that the Veteran's death was not war caused. Therefore Mrs Lynch's claim must succeed.

71. The decision under review of the Repatriation Commission dated 4 June 1997 as affirmed by the decision of the Veterans' Review Board of 22 April 1998 that determined that the death of Ronald Lynch was not causally related to his war service is set aside, and in substitution the Tribunal determines that the death of the Veteran was war caused, and that a war widow's pension is payable to the Applicant on and from 24 September 1996.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member

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

Solicitor for the Applicant Mr A Halstead, of the Legal Aid Commission

Advocate for the Respondent Mr S Modder, Department of Veterans' Affairs