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Emmett J

24 August 1998

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Mrs Shelton lodged an appeal to the Federal Court against a decision of the Tribunal that the death of her late husband was not war-caused. Mr�Shelton had rendered operational service in the Army during World����War��2 and died from ischaemic heart disease and myocardial infarction. As the claim was lodged after 1�June�1994, it was required to be considered in terms of the relevant Statement of Principles.

The following hypothesis was submitted to the Tribunal:

• the war service of the late veteran caused stress which gave rise to the consumption of alcohol;
• the alcohol consumption constituted substance abuse;
• substance abuse led to hypertension; and
• hypertension led to heart disease which was the cause of death.

The Tribunal found that, assuming all of the facts raised by Mrs Shelton to be true, the hypothesis raised on her behalf was reasonable in terms of s�120(3) of the VE Act. The hypothesis was upheld by a Statement of Principles No�83 of 1995 concerning hypertension, in particular paragraph(1)(b) which was in the following terms:

Clause 4 of the Statement of Principles contained a definition of "psychoactive substance abuse" in the following terms:

The Tribunal next considered under s�120(1) whether it was satisfied beyond reasonable doubt that the veteran's death was not war-caused. The Tribunal had before it a statement made by the veteran on 6�January�1989 prior to his death where he stated that he became a heavy drinker because of the stress of his service and the availability of alcohol. He stated that he continued to drink up until 1970 when he was advised by his doctor to reduce his consumption and that since then he had found that "drink now and again helps me to relax".

The Tribunal referred to the evidence concerning the veteran's alcohol consumption and was satisfied that he did not suffer from "psychoactive substance abuse" as defined in the Statement of Principles and the "Diagnostic and Statistical Manual Of Mental Disorders" (DSM-IV). It was therefore satisfied that one of the key facts of the raised hypothesis (namely, psychoactive substance abuse) had been disproved beyond reasonable doubt.

Mrs Shelton's counsel submitted that the Tribunal had erred in law in its consideration of the medical evidence and had decided the matter on the balance of probabilities rather than beyond reasonable doubt. This contention was based on two matters:

1. The Tribunal said that it was satisfied that the veteran had reduced his alcohol consumption in the 1970s but, at the very least, based on the concession by Mrs�Shelton, there was evidence to suggest that he had reduced his consumption of alcohol by 1985. It was suggested that this indicated a measure of doubt on the part of the Tribunal as to whether the veteran had in fact reduced his alcohol consumption in the 1970s.
2. Reliance was also placed on a passage in the reasons where the Tribunal referred to the fact that it "gives weight" to the evidence of Professor Mattick and that he "based his conclusions on a view of the applicant's drinking pattern which is consistent with the evidence before the Tribunal". The contention was that, in expressing the matter in that way, the Tribunal was doing no more than balancing the evidence of Professor Mattick against the other evidence and that in order to determine the question beyond reasonable doubt the Tribunal should have said expressly that it did not accept the evidence of the other medical practitioners.

Emmett J referred to the decisions of the High Court in the cases of Bushell v Repatriation Commission (1992) and Byrnes v Repatriation Commission (1993) and the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 27�AAR�144 as to the correct methodology to be applied. His Honour rejected the submissions in relation to the standard of proof on the basis that the Tribunal had clearly referred to the correct standard of proof in s�120(1) and was satisfied that one of the key facts of the raised hypothesis had been disproved beyond reasonable doubt.

Emmett J observed that the medical evidence before the Tribunal was not relevant to the question of whether or not there was continued use or recurrent use within the meaning of the term "psychoactive substance abuse" as defined in the Statement of Principles. Whether there was continued use was a matter of pure fact and did not depend upon expert medical evidence.

It was clear that the Tribunal was satisfied that the existence of psychoactive substance abuse had been disproved beyond reasonable doubt and that the evidence before the Tribunal was clearly capable of supporting its conclusion in this regard. The first ground argued before the Court therefore did not disclose an error of law.

It was also submitted that the Tribunal had erred in its construction of the definition of "psychoactive substance abuse". It was contended that the fact that the veteran could or did reduce his alcohol intake was not relevant in considering whether he suffered from psychoactive substance abuse.

Emmett J rejected this construction as the definition is concerned with continued use at a level where a persistent or recurrent problem is caused or exacerbated by use of the substance at that level. The Court considered that it was relevant for the Tribunal to consider whether the veteran was able to reduce his consumption of alcohol to a level of use which no longer caused or exacerbated any problem such as hypertension which, on the evidence, he was advised to do. There was also no error of law raised in the second ground argued before the Court.

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