Hurry and Repatriation Commission [1989] AATA 723 (6 December 1989)

Administrative Appeals Tribunal

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Hurry and Repatriation Commission [1989] AATA 723 (6 December 1989)

Last Updated: 14 April 2008

ADMINISTRATIVE APPEALS TRIBUNAL

VETERANS' AFFAIRS - disability pension - whether applicant's condition of cancer of the rectum war-caused - reasonable hypothesis - drinking to excess

Veterans' Entitlements Act 1986 ss.9, 13, 120
East v Repatriation Commission [1987] FCA 242; (1987) 12 ALD 389
Re Dell and Repatriation Commission (1986) 9 ALD 596

Gilbert v Repatriation Commission (unreported: No NSW G1245 of 1988: decided 27 February 1989)

Webb v Repatriation Commission (1988) 78 ALR 696

Repatriation Commission v Lowerson (unreported: No [NSW] G1405 of 1988: decided 29 August 1989)

D E C I S I O N & R E A S O N S

Re: B.V. HURRY

And: REPATRIATION COMMISSION
No V87/580
AAT decision No 5523

Tribunal: Mrs R.A. Balmford, Senior Member

Professor R.W. Webster, Member

Mr A. Argent, Member

Date: 6 December 1989

Place: Melbourne

DECISION

Decision: The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant's condition of cancer of the rectum is a war-caused disease.

(sgd) Mrs R.A. Balmford

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V87/580
VETERANS' APPEALS DIVISION )

Re: B.V. HURRY

Applicant

And: REPATRIATION COMMISSION

Respondent

REASONS FOR DECISION

6 December 1989 Mrs R.A. Balmford, Senior Member

Professor R.W. Webster, Member

Mr A. Argent, Member

1. This is an application for review of a decision of the Repatriation Commission made on 25 November 1985 rejecting the applicant's claim for a pension in respect of cancer of the colon. That decision was affirmed by the Veterans' Review Board ("VRB") on 11 June 1986.
2. The Tribunal had before it the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and numbered T1 to T5, together with extensive additional material lodged at the hearing. Evidence was given at the hearing by the applicant and his wife, Mr Gray and Mr Loughnan, both old friends of the applicant, Dr Brown, a psychiatrist, Professor Kune, a surgeon, and Professor Singer, a psychologist. The applicant was represented by Mr Walters of counsel and the respondent by Mr Weymouth of the Advocacy Section of the Department of Veterans' Affairs.
3. The relevant legislative provisions are sections 9, 13, 119 and 120 of the Veterans' Entitlements Act 1986 ("the Act") which read as follows, so far as relevant:

" 9.(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

...

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

...

but not otherwise."

"13.(1) Where –

(a) ...; or

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;

the Commonwealth is, subject to this Act, liable to pay -

(c) ...; or

• (d) in the case of the incapacity of the veteran - pension to the veteran,

in accordance with this Act."

"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.

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

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application,

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

4. As Mr Hurry's claim relates to his operational service, the standard of proof to be applied in this matter depends on sub-sections 120(1) and (3). Those provisions were considered by the Full Court of the Federal Court in East v Repatriation Commission [1987] FCA 242; (1987) 12 ALD 389. At page 403 their Honours cited the following passage from the decision of the Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:

"A hypothesis may be conveniently defined as; 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary.

...

"The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."

Their Honours continued:

"We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

5. In Gilbert v Repatriation Commission (unreported: No NSW G1245 of 1988: decided on 27 February 1989) Hill J, after citing these passages from East, went on to say (at page 11):

"It seems to me relatively clear, both from the wording of s.120(3) and, indeed, from what was said in East's case, that an hypothesis advanced in abstract which is not grounded in facts which are before the Tribunal could not be a reasonable hypothesis. The hypothesis must expressly be one which is raised by the material which is before the Tribunal. An hypothesis which exists in abstract cannot easily be said to have been raised at all by the material before the Tribunal. Even if it be a possible interpretation of s.120(3) that an abstract hypothesis is raised merely by the assertion of that hypothesis, such an hypothesis could not be said to be a reasonable hypothesis of the relationship between the injury, disease or death, on the one hand, and the war service, on the other.

Thus s.120 is not concerned with abstract theories or hypotheses but is concerned with hypotheses which are grounded in fact. In other words, there will be a need for some evidence before the Tribunal to convert an hypothesis from being abstract to one having relevance to the facts of the particular case. In the absence of such facts which are a condition precedent to the hypothesis, the hypothesis even if it may be said to have been raised at all will certainly not show any relevant connection between the injury, disease or death and the war services and for that reason would not be a reasonable hypothesis."

His Honour then referred to certain passages from the judgments of Davies and Pincus JJ in Webb v Repatriation Commission (1988) 78 ALR 696 and continued (at page 15):

"Once the Commission has formed the opinion that the material before it does raise a reasonable hypothesis then s.120 (1) will fall to be considered. It may then come about that, having regard to the material before the Tribunal, the hypothesis is dispelled beyond reasonable doubt. This, with respect, in my opinion, is what was meant by Davies J. in the passage I have cited from Webb when his Honour dealt with the case where it was proved beyond reasonable doubt that, although the cancer might be hypothesised to have originated in an injury, that injury did not occur during war service. His Honour, in the passage cited, had assumed that there was first found a reasonable hypothesis, that is to say, one which in the East sense was grounded in fact. His Honour then considered the application of s.120 (1).

The same idea, it can be said, is caught up by Foster J. when his Honour refers to the basic factual material upon which the reasonable hypotheses is raised being found 'at the end of the day' to exist. The application of s.120(1) in a case such as the present, in my view, will normally arise only after the reasonable hypothesis has been raised on the material before the Tribunal, that is to say, only after there is some ground of fact which both raises the hypothesis and allows it to be described as reasonable. An interpretation of the relation between s.120 (1) and s.120(3) of the Act which suggests that in determining whether an hypothesis is reasonable any fact upon the existence of which the hypothesis is dependent is to be assumed unless dispelled by the evidence beyond reasonable doubt, would be contrary to the clear legislative intention to replace the O'Brien test with that expressed in dissent by Brennan J. It is not to be assumed that the Court in Webb overlooked what had been said in East."

See also the decision of Morling J in Repatriation Commission v Lowerson (unreported: No [NSW] G1405 of 1988, decided on 29 August 1989.)

6. The submission of the applicant was that the material before the Tribunal raised a reasonable hypothesis, in terms of sub-section 120(3) of the Act, connecting Mr Hurry's cancer with the particular service rendered by him. That hypothesis was based on the fact, which the respondent, rightly, on the evidence, conceded, and which we find, that the cancer in question was cancer of the rectum, not of the colon as had previously been stated. The hypothesis was that Mr Hurry's habit of drinking beer to excess, which began in 1945 and continued until 1985, was causally connected with his eligible war service, and that that habit was a factor in the development of the cancer. Thus in terms of paragraph 9(1)(b) of the Act, the cancer arose out of, or was attributable to, his eligible war service.

7. On the basis of the documents before us and the evidence of Mr Hurry and the other non-medical witnesses, which was not challenged and which we accept, we find the facts set out in this and the following five paragraphs. Mr Hurry, who was born in 1927, served in the Royal Australian Navy from April 1945 to December 1946 and saw service in Japanese waters for some six months, constituting "operational service" in terms of paragraph 6(1)(a) of the Act. He is thus taken to have been "rendering operational service", and hence to have "been rendering eligible war service" during the whole of that period of service (see paragraphs 6(1) (a) and (d) and 7(1)(a) of the Act).
8. Mr Hurry left school at 15, and shortly afterwards became apprenticed to his father, who was a hairdresser. He joined the Navy on or about his 18th birthday. His father drank very little and there was a tradition of teetotalism in his mother's family. He had promised his mother that he would not drink alcohol until he was 21. He broke that promise on his first weekend leave after he joined the Navy, when other members of his recruit course at Flinders said that he was giving the class a bad name by not drinking. They stepped off the train and into Young and Jackson's hotel, where the other members of the course said that they would christen him.
9. He continued to drink during subsequent periods of weekend leave, and after three months joined HMAS Hobart as an ordinary seaman. His shipmates were older than he: some had been in the Navy before the war. When they had leave in port they would go ashore to the nearest hotel and drink. He mostly drank with a friend who was a "four-badge AB", that is, an able seaman of 12 years' service. They would drink until they collapsed. In Japan there were places run by Americans where they were permitted to drink, and where a local beer known as "Green Label" was served. There was occasionally a beer ration on board.
10. After his demobilisation in 1946, Mr Hurry completed his training as a hairdresser. He was drinking extensively: there was a hotel next door to his workplace where he would go each evening, and he belonged to clubs where he could drink after 6 p.m. He would drink 12 or 13 pots of beer in an evening and then move on to glasses. His parents were worried about him, and in 1950 he rejoined the navy, thinking that the discipline would help him to control his drinking. He went to Heard Island, where there was no alcohol, and missed it. When the ship returned to Albany he spent all his pay on drink.
11. He left the Navy after two years on the expiry of his engagement, and returned to work as a hairdresser. He has continued to work as a hairdresser, and as a bookmaker's clerk at weekends. In 1956 he married. He tried to give up drinking a few times, but it never lasted for more than a couple of days. He would drink after work most nights, and arrive home at any time up to 11 p.m. He had a standing order for two dozen bottles of beer to be delivered each weekend. He did not drink any alcoholic liquor other than beer.
12. In 1985 he had what he described as a "blackout" and was admitted to hospital. His neurosurgeon told him that if he continued to drink he would end up as a "small vegetable". This frightened him, and he has not had a drink since. He avoids places where drink will be served, to the extent of not attending family weddings. He goes to Mass every morning, and this has helped him. In August 1985 he was diagnosed as suffering from cancer, and was operated on by Dr Fink. It is clear from Dr Fink's reports that, despite an earlier misdescription, the tumour was located in the rectum rather than the colon.

13. Dr Brown has extensive experience in the treatment of alcoholic patients and of ex-servicemen. He interviewed Mr Hurry for the purposes of these proceedings. In his report of 18 October 1988 he said:

"I agree with both Dr. McCleave and Dr. Neville Parker where they refer to the influence of peer pressures and boredom as factors which promote alcohol problems in some people.

In this respect Mr Hurry seems to have been in a virtually inescapable situation when on shore leave at the age of 18 years drinking with older and probably more experienced companions. Prior to enlistment, working as an apprentice hairdresser for his father he was not subjected to similar peer pressures and in any event from what he tells me, he could have made a choice in his friends and avoided drinking. This is not to say that at some future time he would not have commenced beer drinking. Nonetheless it seems clear that the conditions of his service life were such that he was introduced to alcohol and drinking habits were established which led to his alcohol dependence at an early age.

The influence of peer pressures and boredom as contributory factors in the development of excessive drinking in some ex-servicemen has been well documented.

It is of some interest that there appears to be no clear significant correlation between disturbing service events e.g. enemy action, and the later development of alcohol dependence in veterans. There are however exceptions such as some Australians who were P.O.W. in Japanese hands.

In the case of Mr. Hurry, it appears that the particular service experiences which were the major factor in initiation of his drinking habits, was [sic] the need to be accepted by his Navy friends in the face of his then lack of maturity. He has an accepted disability for anxiety neurosis and this would have been likely to render him more vulnerable to peer pressures or possibly contribute to any loss of control if there was underlying anxiety at those times.

It appears that Mr Hurry was unable to control his excessive beer drinking habit when he first left the Navy in 1945 and later on final discharge in 1952. Most young ex-servicemen were able to adjust to civilian life after discharge and to exercise control over their alcohol intake.

This raises the question of Mr Hurry's vulnerability to alcohol. Would he have become addicted to alcohol apart from any Navy service?

There have been studies analysing genetic and familial factors, personality types, predisposition to depression, early behavioural problems and attempts to predict those young men who appear to be at risk of becoming heavy drinkers.

For convenience I have enclosed an appendix setting out some brief extracts summarising findings of research studies which might have some bearing on Mr Hurry's case.

We find that Mr Hurry does not appear to fit any of the risk criteria as a teenager when he joined the Navy.

For instance his personal and family history has already been noted above. There does not appear to have been any significiant irresponsible behaviour as a youth, lack of conformity or depressive episodes experienced by himself or family members; his parents were not drinkers and remained together. He did not suffer an unhappy childhood with typically aggressive, uncaring parents and there was an absence of familial psychopathic elements.

But the fact that he did continue to drink excessively without adequate control and continued to do so during his civilian life until 1985 is in itself evidence of vulnerability.

Consequently I conclude that his service experience resulted in these vulnerable traits surfacing and becoming manifest so that he did become addicted to alcohol as a lifelong problem.

Consequently I have formed the opinion on the basis of the evidence submitted and from my own examination of Mr Hurry, that his drinking habits were initiated during his Navy service in 1945 and that subsequently during his service he established patterns of drinking which were excessive and continued after he was discharged for most of his life.

I consider that the conditions of his service life were significant contributing factors in the development of alcohol dependence for so many years in this man."

His evidence at the hearing was consistent with this report, save that he noted that he had been in error in stating that Mr Hurry's anxiety state was an accepted disability. He emphasised that serving at sea meant that Mr Hurry had a limited group of people with whom to do things and a limited range of things to do, and these factors increased his vulernability.

14. Professor Kune has been since 1979 the principal investigator of the Melbourne colorectal large bowel cancer study, which is the largest and most comprehensive study of its kind in the world. He and his colleagues and other scientists have found a statistically significant and independent link between previous consumption of beer and the subsequent development of rectal cancer. There is a dose-response relationship. The facts that the link was independent of other factors and that there was a dose-response relationship increased the likelihood that the relationship was causal.

15. Professor Singer is a psychologist who has carried out extensive research on the causation of alcoholism. However, he did not have the experience of Dr Brown in the treatment of alcoholic patients and of ex-servicemen, and the Tribunal did not find his evidence to be of assistance to it.
16. Having considered the whole of the material before us, in the light of the authorities to which we have referred, we are of the opinion that the material before us raises a reasonable hypothesis in the terms set out in paragraph 6 supra. We are not satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that Mr Hurry's condition, which we have found to be cancer of the rectum, is war-caused. Accordingly, by virtue of sub-section 120(1) of the Act, the decision under review will be set aside and an appropriate decision substituted therefor.