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[2002] AATA 517
respondent. The decision under review was affirmed.
The Tribunal accepted that Mr Mychael probably began drinking heavily while serving in Singapore and that alcohol may have been medically connected with his hypertension or weight. But the legal test also required a reasonable, Statement-of-Principles-compliant hypothesis linking the drinking itself to his operational service. The Tribunal found that the evidence showed timing, not the necessary service-related connection, and did not establish a qualifying severe stressor. It therefore affirmed the decision that his death was not war-caused.
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The Administrative Appeals Tribunal, Veterans’ Appeals Division, considered Sylvia Mychael’s application for review of the Repatriation Commission’s decision that her late husband’s death was not war-caused. The Commission had made its decision on 12 August 1998, and the Veterans’ Review Board affirmed it on 9 June 2000. The Tribunal affirmed the decision under review on 27 June 2002.
1 cited instrument linked from this judgment.
Vernon Archibald Mychael had two periods of operational service: in Singapore from 13 July 1953 to 17 October 1954, and in Malaya and Thailand from 2 June 1962 to 1 May 1963 [2]. He died on 13 August 1997. The certified cause of death was hypertensive heart disease [3].
The Applicant advanced two possible chains linking service to death. First, she argued that service caused or contributed to alcohol dependence, which contributed to hypertension and, ultimately, death. Secondly, she argued that service led to alcohol habituation, which contributed to obesity, which in turn worsened the hypertension [5]. Both routes therefore depended on establishing a service-related connection to the deceased’s alcohol use.
The medical material addressed possible links between alcohol, hypertension, obesity and the fatal event. Dr Miller considered that alcohol dependence contributed to the hypertension and that, if the dependence was contributed to by war service, the death was war-caused [8]. His report also connected alcohol dependence with excessive caloric intake and weight gain [9]. These medical opinions addressed the medical links in the proposed chains. The Tribunal’s central difficulty was the separate evidentiary step: whether the alcohol use was caused or contributed to by operational service.
The Tribunal accepted that Mr Mychael probably began a pattern of hazardous drinking during his Singapore service. It nevertheless treated that as temporal association, not proof of a service-related cause [21]. It found the material insufficient to raise the required hypothesis connecting alcohol habituation with service [22].
The Tribunal applied the statutory framework it summarised in paragraph 4. Because Mr Mychael had operational service, ss 120(1) and (3) of the Veterans’ Entitlements Act 1986 governed the standard. As the Tribunal described those provisions, death was to be treated as war-caused unless it was satisfied beyond reasonable doubt that there was no sufficient ground for that determination. The Tribunal could be satisfied of that where, after considering all the material, it did not raise a reasonable hypothesis connecting the death with the circumstances of the veteran’s service [4].
The hypothesis also had to meet the applicable Statement of Principles. The Tribunal said s 120A(3) provided that a hypothesis would not be reasonable unless it conformed to the Statements of Principles determined by the Repatriation Medical Authority [4]. The Tribunal identified a relevant hypertension factor in Instrument No 83 of 1995 concerning psychoactive substance abuse involving daily alcohol consumption, and another concerning persistent obesity. It also identified factor 5(b) in Instrument No 5 of 1994, which concerned experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or abuse [7].
The parties agreed that the earlier instruments were more favourable to the Applicant than the instruments in force at the time of review. Relying on Repatriation Commission v Gorton [2001] FCA 1194, the Tribunal therefore considered Instrument No 83 of 1995 and Instrument No 5 of 1994 [6]. The judgment gives no fuller account of Gorton’s reasoning, so the relevant point available from this decision is limited: it treated Gorton as supporting use of the earlier, more favourable instruments in this matter.
The Tribunal assessed the evidence about alcohol consumption and service circumstances. The Applicant described Mr Mychael as drinking heavily during their dating period after his return from Singapore, and later identified alcohol as a problem after their posting to Malaya [13]-[15]. His brother said he had not drunk before enlisting and drank “a fair bit” after his return from service, but did not say that Mr Mychael had explained why he started drinking [16]. Mr Dickie attributed drinking to peer pressure and described service-related responsibilities and possible stress [18].
The Tribunal did not treat those statements as enough to establish a qualifying severe stressor. It considered the historian’s report, which described the deceased’s duties and the conditions in Singapore, and noted that the record showed his posting was with No 1 Squadron rather than the No 3 Squadron referred to by Mr Dickie [19]-[20]. The Tribunal also criticised Mr Dickie’s account as short on specifics and found that it attempted to bolster the case by exaggeration [18]. Its conclusion was not that hazardous drinking did not occur during service. Rather, it found that the evidence did not show that service caused or encouraged that drinking, or that the deceased experienced a severe stressor as defined by the applicable instrument [21].
This decision applies the statutory and Statement of Principles framework as the Tribunal understood it in 2002. It does not announce a general change to that framework. The Tribunal’s account is that ss 120(1) and (3) set the reasonable-hypothesis approach for a death following operational service, while s 120A(3) requires the hypothesis to conform to the relevant Statement of Principles [4]. Section 120(6), also noted there, meant that neither party bore an onus of proof.
The decision’s principal legal application concerns the relationship between the medical chain and the service connection. Medical evidence could support the propositions that alcohol contributed to hypertension or that alcohol dependence was associated with weight gain [8]-[10]. But those propositions did not themselves establish that service caused or contributed to alcohol consumption. The Tribunal treated that service-related link as essential because both hypotheses advanced by the Applicant depended on it [5], [22].
The Tribunal also selected the earlier Statements of Principles because the parties agreed those instruments were more favourable to the Applicant, and because it considered Gorton relevant to that choice [6]. The decision does not set out the text or full reasoning of Gorton, nor does it describe later amendments or later judicial treatment. It therefore supports a statement about how this Tribunal handled the instruments, not a broader account of the current law.
The practical distinction made in the reasons is between evidence that an event occurred during service and evidence that service caused or contributed to it. The Tribunal found a temporal connection between service and hazardous drinking, but held that this did not, on the material before it, raise the relevant reasonable hypothesis [21]. That distinction is specific to the evidence and legal framework addressed in this decision.
At paragraph 4, the Tribunal explains that a hypothesis must conform to the applicable Statement of Principles to count as reasonable. In plain English, a medically imaginable connection is not enough under the test described by the Tribunal; the proposed connection must fit the relevant prescribed factor.
At paragraph 6, the Tribunal says the parties agreed that earlier instruments were more favourable and, having regard to Gorton, it would consider those earlier instruments. In plain English, the Tribunal selected the earlier versions of the relevant Statements of Principles for this review. The judgment does not explain Gorton beyond that use.
At paragraph 18, the Tribunal evaluates Mr Dickie’s evidence. It says the account was short on specifics, that he could not say the deceased saw accidents, and that it attempted to bolster the Applicant’s case by exaggeration. This passage matters because it shows the Tribunal did not accept the witness’s description of service stress at face value. It then compared that account with the historical material in paragraph 19.
At paragraph 21, the Tribunal states that it could find that hazardous drinking probably began during the Singapore service, but that this was “a temporal connection only”. In plain English, the fact that heavy drinking began during service did not, without more, demonstrate that service caused it. The Tribunal also found no material pointing to the defined severe stressor.
At paragraph 22, the Tribunal explains why the two proposed medical routes failed together: both depended on alcohol consumption being caused or contributed to by operational service. It found the material insufficient to raise a hypothesis connecting habituation with service. That finding led directly to affirmation of the decision.
This decision is most relevant as an example where a claim depends on a chain of causal propositions: operational service is said to have caused or contributed to alcohol use, and that alcohol use is then said to have contributed to a medical condition or death. The Tribunal treated the service-to-alcohol link as a distinct issue from the alcohol-to-health link.
It is also relevant where the evidence shows that a condition or behaviour began during service but does not explain why it began. Here, the Applicant and other witnesses described heavy drinking after or during service, while the Tribunal found that the evidence did not sufficiently connect the drinking to the service circumstances [13]-[16], [21]. The reasoning indicates that chronology alone did not raise the relevant hypothesis on this record.
The decision may also be relevant where a proposed hypothesis relies on a defined factor in a Statement of Principles, such as a severe stressor. The Tribunal considered the definition in Instrument No 5 of 1994 and tested the witness evidence against it [7], [18]-[21]. The judgment does not establish that this particular witness evidence could never meet the factor in another case; it records the Tribunal’s assessment of this evidence and this service history.
Finally, the decision illustrates a situation where medical evidence supports parts of a causal chain, but the evidentiary link to service remains contested. Dr Miller’s opinions addressed the relationship between alcohol, hypertension and obesity [8]-[10]. The Tribunal nevertheless concluded that the service-related origin of alcohol habituation was not raised by the material.
The judgment supplied here contains no later cases discussing or applying Re Mychael. It therefore does not establish how later courts or tribunals have treated this decision. The only other judgment it identifies is Repatriation Commission v Gorton [2001] FCA 1194, which preceded this decision and is referred to in paragraph 6 in connection with choosing earlier, more favourable Statements of Principles.
The decision itself records that it affirmed the decision under review. It does not cite any subsequent treatment of its reasoning, and no later authorities have been supplied for this analysis. Any account of later treatment would require sources beyond the text provided.
The judgment leaves several matters unanswered because it focuses on the evidence before this Tribunal. It does not provide the full reasons in Gorton, so the precise scope of that Federal Court decision cannot be established from this text alone. It records the parties’ agreement about which instruments were more favourable and the Tribunal’s resulting choice, but it does not compare all relevant provisions in detail [6]-[7].
There is also a date inconsistency in the medical discussion. Paragraph 10 reports Dr Miller’s view that clinical worsening occurred in 1986, based on Dr Lee’s account that treatment began then. Paragraph 11 says the Tribunal understood Dr Miller’s evidence to be that the hypertension became clinically worse in 1996. The supplied reasons do not reconcile those dates. The inconsistency does not alter the Tribunal’s stated ultimate basis for decision, which was the missing service-related hypothesis about alcohol habituation, but it is a point a reader may wish to distinguish when tracking the medical chronology.
The decision does not determine that alcohol played no role in the deceased’s hypertension or death. Instead, it records medical evidence suggesting that alcohol could contribute to hypertension and weight gain, then finds that the required connection between alcohol habituation and operational service was not raised [8]-[12], [22]. Nor does it determine whether different or more specific evidence about service circumstances would meet the statutory test in another case.
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DECISION AND REASONS FOR DECISION [2002] AATA 517
Tribunal Mr M D Allen, Senior Member Dr J Campbell, Member
Decision The decision under review is affirmed.
VETERANS' ENTITLEMENTS: Whether deceased's alcohol habituation caused or contributed to by operational service. Failure of material before Tribunal to raise a reasonable hypothesis.
Veterans' Entitlements Act 1986 - ss 120(1), (3), (6); s 120A
Repatriation Commission v Gorton [2001] FCA 1194
1. By Application made the 8th day of August 2000 the Applicant sought review of a decision by the Respondent on 12 August 1998 as affirmed by a Veterans' Review Board on 9 June 2000 that the death of her late husband Vernon Archibald Mychael was not war-caused.
2. The late veteran had operational service as that term is defined in s 6D of the Veterans' Entitlement Act 1986 (the VEA) for the following periods namely:
3. The deceased died on 13 August 1997, the certified cause of death being hypertensive heart disease.
4. As the deceased had operational service, the standard of proof in this matter is that prescribed by subsections 120(1) and (3) of the VEA. Those subsections provide that the death of the deceased was war-caused, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will, however, be so satisfied if after consideration of the whole of material before it, that material does not raise a reasonable hypotheses connecting the death of the deceased with the circumstances of the particular service rendered by him. Subsection 120A(3) VEA then goes on to provide that a hypothesis will not be reasonable unless it conforms to the so-called Statement of Principles (SoPs) determined by the Repatriation Medical Authority. Subsection 120(6) VEA provides that no onus of proof lays upon either party to this review.
5. Two hypotheses were advanced by the Applicant seeking to link the deceased's death with his operational service. The first hypothesis was that the deceased became alcohol dependent as a result of his service and this in turn led to hypertensive heart disease. The second hypothesis is that the deceased developed a habituation to alcohol because of operational service, which led to obesity which in turn contributed to a worsening of his hypertensive heart disease.
6. It was agreed by both parties to the review that the SoPs re hypertension and psychoactive substance abuse in force at the time the Respondent made its initial decision in this matter, being Instruments No 83 of 1995 and No 5 of 1994 respectively, were more favourable to the Applicant than the SoPs currently in force. Consequently, having regard to the decision of the Federal Court in Repatriation Commission v Gorton [2001] FCA 1194, it is to those earlier instruments that the Tribunal has had regard in determining this matter.
7. The relevant factors for hypertension in Instrument No 83 of 1995 which are applicable to the late Mr Mychael are:
5(b) suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
(v) suffering from persistent obesity which developed before and continued at least until the clinical worsening of hypertension.
Whereas in Instrument No 5 of 1994 the factor relied upon to raise the reasonable hypothesis is factor 5(b) which reads:
"Experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse."
The term "experiencing a severe stressor" is defined in the said instrument as follows:
"Experiencing a severe stressor means, the person experienced, witnessed or was confronted with, event or events that involved actual treat of death or serious injury, or a treat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror."
8. Exhibit A9 is the report of Dr Miller consultant physician dated 7 December 2001. In the penultimate paragraph of his report Dr Miller sums up the first hypothesis contended for by the Applicant. He states:
"I consider that Mr Mychael's alcohol dependence contributed to the hypertension that was a major factor contributing to the fatal arrhythmia. If it is determined that his alcohol dependence was contributed to by his war service, then I consider that Mr Mychael's death was war-caused."
9. The alternative hypothesis relied upon by the Applicant finds support in Dr Miller's report where in answer to question 5 asked of him, he states:
"There is no doubt that Mr Mychael's alcohol dependence exposed him to an environment which encourages caloric intake that was excessive for his needs and he had gained 21.8 kg over his baseline weight of 79.8 kg. This is a gain of 21.45 % so that he satisfies factor (a) of the Repatriation Authority's statement about the causes of being obese."
10. Having reviewed the documents in this matter including the deceased's service medical records and especially the report of Dr Lee cardiologist to the deceased's General Practitioner dated 31 January 1996 Dr Miller stated:
"There is insufficient evidence to state that Mr Mychael was drinking 200g of alcohol at the time of the diagnosis of his hypertension during his service on 23th August 1965. However, in my opinion, Mr Mychael's drinking satisfies Factor 5(o) of the Statements of Principles for Hypertension, Instrument Number 31 of 2001 as he was drinking considerably more than 200g per week of alcohol (contained within alcoholic drinks), at the time of the clinical worsening of hypertension. This, according to Dr Lee would have been in 1986 when treatment was started for his hypertension."
11. As we understand Dr Miller's evidence he stated that the deceased's hypertension became clinically worse in 1996 as his blood pressure reading was then 140/80, which is hypertensive, although the deceased had been on anti-hypertensive drugs namely Renitec, and previously Inderil, for ten years. There is evidence from the Applicant that the deceased was at this time a heavy drinker.
12. In evidence Dr Miller stated that the blood pressure readings of the deceased while still in RAAF were consistent with a mild hypertension. Blood pressure readings are often labile (fluctuating) in patients who drink alcohol. Also people who drink large quantities of alcohol put on weight.
13. The Applicant gave evidence that she met the deceased when he had returned from his first period of operational service, which was in Singapore. It was just prior to or just after Christmas 1954. At that time she also was in the RAAF. When she and her husband first started to associate she formed the opinion that he was an established drinker. In Exhibit A2 she said:
"On other visits to each other during our dating period, we would go drinking together at the RAAF bases and hotels. We would drink until we were tipsy. It only took me two beers to become tipsy, but my husband would drink more - usually between 6-10 beers."
Later her mother in-law told her that before he joined the RAAF the deceased did not drink alcohol.
14. It was not until they had returned from the posting to Malaya that the Applicant came to the opinion that her husband had a problem with alcohol. She had previously just regarded him as a "big drinker" even though in 1957 her husband had been involved in a motor vehicle accident whilst intoxicated. The Applicant also stated that there was an occasion in Malaya when her husband drove while still intoxicated and the motor vehicle left the road. Service in Malaya involved an active social life and her husband kept alcohol at home and drank 6-10 beers a night when they had visitors. Sometimes he drank more.
15. Attached to the Applicant's Statement of evidence (Exhibit A2) are copies of letters written by the deceased to the Applicant prior to their marriage. It is fair to say that these show that the deceased, at that time, often drank to the stage that he was intoxicated and that alcohol was a constant topic of his conversation.
16. Exhibit A6 is a statement by the deceased's brother. Unfortunately Mr Clifton Mychael was not available for cross-examination but he does say that the deceased did not drink alcohol before he enlisted and that he was drinking "a fair bit" after "his return from service" by which we assume he meant after the deceased's first period of operational service which, as stated above, was in Singapore. He does not say that his brother told him why he was drinking or what caused him to start.
17. Exhibit A5 is a statement dated 16 November 2000 by George S Dickie who served with the deceased in the RAAF. Mr Dickie also made a statement which was before the Veterans' Review Board. This statement is at document T12 page 63 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
"I have no doubt whatsoever that this overindulgence was brought about by the peer pressure exhorted on him and all other RAAF members to drink at every available occasion. So much so that in the passage of time it became a way of life. It was, for instance, expected that you would go to the mess every afternoon afterward to drink and socialised with a fellow members. Vernon was a good sportsman and represented the RAAF at both tennis and cricket. After such events it was almost mandatory that you would retire to the mess to entertain or to be entertained by the opposing teams by "having a few bears"."
No mention is made in that statement of any stressful service the deceased may have had. However in his later statement Mr Dickie said:
"I know also that Mr Mychael would have seen stressful service when he was based in Singapore with the No.3 squadron. He was stationed there as armourer to ensure that the planes were loaded with the correct weaponry. The fighter aircraft used to fly out to the northern part of Malaya to drop the bombs when we were at war with the Chinese Malay Communist Party. Mr Mychael was with the No.3 squadron based in Singapore during this active war zone for approximately 18 months. I am sure that he would have seen accidents. Furthermore, he would have been mates with the pilots and navigators that went out on the bombing raids. There was great pressure and responsibility in this regard as it was his job to ensure that his mates in the aircraft left and came home in one piece. There would have been enormous pressure on Mr Mychael to ensure that the weaponry was loaded correctly as it was the pilots' and navigators' only protection. If he did not do his part correctly, the operation would not be a success. In the course of conversation, Mr Mychael often commented that he was concerned that his mates would go out on a mission and never come back."
This material from Mr Dickie is short on specifics. In particular the deponent cannot say that the deceased saw accidents. Furthermore he attempts to bolster the Applicant's case by exaggeration. At the time of the Communist insurgency in Malaya, bomber aircraft (not fighters and Mr Dickie an ex-RAAF member would well know the difference) of the RAAF, being Lincoln bombers, were used to bomb suspected terrorist bases or supply lines. The Malay Communist Party did not have anti aircraft weapons. All that was required of the RAAF aircraft was that they fly to a set of map coordinates, drop their ordinance, then descend to tree top of level and straf the entire area with machine gun and canon fire and then return.
19. Exhibit R3 is a report by a historian covering the period of the deceased's operational service in Singapore. The report concludes by stating:
"Mr Mychael was responsible, along with other armourers and ground crew, for the maintenance, preparation, loading and arming of weapons before take off and the disarming of aircraft after return to base. He would have known crew members from day to day duty contact but his responsibility to "ensure that his mates in the aircraft left and came home in one piece" would not have been greater that other squadron members. He may have made closer friendships with some squadron aircrew during off-duty social and sporting activities but again, probably no more than other ground crew members.
The CT did not possess any anti aircraft weapons other than small arms. There are no records of any squadron aircraft being hit by enemy fire. There were no casualties suffered by aircraft or crew from enemy action during this period. There were no serious accidents at Tengah involving 1 Squadron aircraft and therefore no casualties during this period."
20. We note that Mr Dickie's statement refers to the deceased being based in Singapore with No 3 Squadron. The deceased record of service (document T3) shows that his posting in Singapore was with No 1 Squadron. No objection was taken to the report, which became Exhibit R3.
21. Given the material before us all we can find is that the deceased probably commenced a pattern of drinking alcohol in quantities regarded as being quite "hazardous" during his service in Singapore, but this is a temporal connection only and there is nothing in his service which would have caused or encouraged him to commence to drink alcohol. In particular there is no material which would point to the deceased "experiencing a severe stressor" as that term is defined in Instrument No 5 of 1994.
22. Both hypotheses contended for by the Applicant depend upon an acceptance of the deceased's alcohol consumption being in some way caused or contributed to by his operational service. As pointed out above, by the time of the deceased's second period of operational service he was already habituated to alcohol and in so far as his first period of operational service is concerned, the material before us is insufficient to point to an hypothesis which connects his alcohol habituation with service. The decision under review will therefore be affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of:
Signed: .....................................................................................
Representative for the Respondent Ms S Breuer, Department of Veterans' Affairs
Repatriation Commission
Gorton
The decision under review was affirmed.