Case: Constable v Repatriation Commission [2005] FCA 928
Outcome: cited
In support of the second basis, the veteran referred to the decision of Dowsett J in Constable v Repatriation Commission [2005] FCA 928 which concerned the conditions of alcohol dependence and alcohol abuse. The veteran's reliance upon this decision was misplaced. After setting out ss 120 and 120A of the VE Act , Dowsett J went on to consider the definition of alcohol dependence and the definition of alcohol abuse in the Alcohol SoP. As his Honour noted, the Alcohol SoP defined alcohol dependence and alcohol abuse separately. However, as his Honour went on to note, paras 3, 4 and 5 of the Alcohol SoP applied to both conditions and were in the following terms: " Basis for determining the factors 3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces. Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are: (a) ... (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or ..." 26 The expression " experiencing a severe stressor " is defined in para 8 of the Alcohol SoP to mean that: "... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence ...' 27 Not surprisingly, Dowsett J stated that " [n]othing turn[ed] upon the distinction between alcohol abuse and alcohol dependence. I will hereafter describe both conditions collectively as 'alcohol abuse'" : at [6]. Two matters may be noted. First, his Honour expressly recognised that there were two conditions. It is true that the factors necessary before it can be said that a reasonable hypothesis has been raised connecting each condition with the circumstances of a person's relevant service are the same. However, that second matter, the existence of the common factors necessary before it can be said that a reasonable hypothesis has been raised connecting each condition with the circumstances of a person's relevant service, does not diminish or detract from the existence of the separate conditions or from the fact that the definition of alcohol abuse in the Alcohol SoP provides that the symptoms of alcohol abuse arise only if " these symptoms have never met the criteria for alcohol dependence" . 28 The question raised by this appeal was whether it was necessary for the Tribunal to find which of the two conditions was applicable to the veteran and if so, whether the Tribunal's failure to do so was an error of law? 29 The answer to each question is yes. As was properly conceded during the course of argument by Mr Thomson, Counsel for the veteran, it was an error of law for the Tribunal to fail to make a finding as to which of the two conditions was applicable to the veteran. Accordingly, it goes without saying that I would allow the appeal and set aside the decision of the Administrative Appeals Tribunal.