Case: Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473
Outcome: referred to
Section 120A was introduced by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth). The intent behind the introduction of s 120A (and s 196B) of the VE Act was explained in the Explanatory Memorandum to the Bill, an extract of which was set out by the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at 489, [90] . 15 Sections 120A(3) and (4) of the VE Act provide: "(3) For the purposes of subsection 120(3), a hypothesis connecting ... the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis." (4) Subsection (3) does not apply in relation to a claim in respect of ... the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be." 21 Secondly, as was pointed out by the Full Court in Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at 483 at [55], the observation at step 2 of the Deledio analysis that if no SoP is in force the application must fail, must be qualified by reference to s 120A(4) of the VE Act which provides that s 120A(3) does not apply in certain circumstances. 49 Mr Green's submission that there is no SoP relevant to the veteran's alcohol habit because there is a difference between 'a heavy drinker' and a person who suffered from 'alcohol abuse' or 'alcohol dependence' as defined in the SoP should be rejected on at least two bases. First, it is well established that a SoP covers the field: see Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [100] and the Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) which provided that the RMA will prepare SoPs based on " sound medical-scientific evidence " that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service. 50 Secondly, the threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's death with the circumstances of his service. This branch of the respondent's argument seeks to rely on only part of the material before the Tribunal. 51 The evidence before the Tribunal was that the diagnosis of Dr Epstein was that the veteran was a 'chronic alcoholic'. Dr Epstein's criteria for an alcoholic was " a person whose drinking interfered with their health, with the family life and their working capacity" . Dr Epstein's evidence was that there was " certainly no doubt that [the alcohol habit] interfered with his family life" . That view was consistent with the respondent's own evidence to the Tribunal that there was disharmony in the marriage because of the veteran's alcohol consumption. Having regard to diagnostic criteria A(1) and (4) for alcohol abuse in the SoP for alcohol abuse or alcohol dependence, the whole of the material before the decision-maker would appear to suggest that at least some of the diagnostic criteria were satisfied. That however is a question of fact for the Tribunal.