Case: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408
Outcome: referred to
Notwithstanding the characteristics of the material referred to by the Repatriation Commission, I was left with the firm view that Dr Parker (whose evidence on this topic was accepted) considered that alcohol intoxication preceded, and continued to exist to, the time when Mr Hill had the clinical onset of alcohol dependence. As the AAT said, it did not need to prefer his evidence to reach that view, so long as it was rational and available to support the hypothesis: see the comments of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414-415. The fact that both alcohol intoxication and alcohol dependence arose after Mr Hill commenced his operational service was clearly consistent with his and other's evidence about his alcohol consumption before that time, although it noted one drinking episode before that time which (the AAT said) fitted with the diagnostic description of alcohol intoxication. The AAT made the observation that it was implicit in the evidence of both specialists (Dr Parker and Professor Goldney) that Mr Hill's pattern of alcohol consumption in Vietnam represented deterioration or worsening of a psychiatric condition. Having considered the evidence of Dr parker, as the AAT's preferred witness on this topic, that is a fair observation. The AAT also had the evidence of Professor Varghese that alcohol dependence usually develops gradually. Dr Parker's evidence was described in the AAT's reasons as saying that "... the behaviour exhibited by Mr Hill was that of a diagnosable condition of alcohol intoxication, which condition at some stage later, but still while he was in Vietnam, developed into dependency." It did so in the light of his cross-examination. That reliably reflects his evidence. He was speculative as to the precise dates of onset of each of those conditions, but not as to the fact of their onset or as to their sequence. His evidence supports the critical issue the existence of alcohol intoxication at the time of the clinical onset of alcohol dependence. That was material upon which the AAT could have reached its conclusion that a reasonable hypothesis had been raised by reason of either cl 5(a) or cl 5(c) of the AD SOP being met, i.e. that one of the alternative minimum factors specified for the existence of a reasonable hypothesis connecting Mr Hill's alcohol dependence with his operational service. 87 One variation of this submission was to start with the observation of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414-415 that it will be rare that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner with appropriate expertise. The AAT was not unmindful of that statement. It referred to it elsewhere in its reasons. But the AAT did not regard the "raised facts" as supporting the hypothesis first suggested by Dr Parker, and as it explained upon all the evidence, Dr Parker's initial view came to be qualified. It was left with material upon which it did not regard the hypotheses put forward by Mr Hill as reasonable. In my view, it did not somehow misapply the law which, earlier in its reasons, it had correctly identified as applicable. In particular, it did not commit the error discerned in Repatriation Commission v Whetton (1991) 31 FCR 513 of reversing the question posed by s 120(3) to the positive existence of a reasonable hypothesis. That case, upon which counsel for Mr Hill relied, was quite different factually: the uncontroverted evidence in that case was that during service the deceased serviceman had been substantially exposed to material which could have led to the disease from which he did; the evidence in this matter in relation to pathological gambling did not go anywhere near so far. 107 I do not think that the decisions referred to by counsel for Mr Hill in this context dictate a contrary conclusion. Bushell v Repatriation Commission [1992] HCA 47 ; 175 CLR 408 concerned the process by which a diagnosed disease might be connected to service. It proceeded on the basis of the claimant having suffered essential hypertension. So the question of "diagnosis" (to use the AAT's word) was not in issue. So too in Byrnes v Repatriation Commission (1993) 177 CLR 465. The claimant's condition of cervical and thoracic spondylosis was not in issue. What was in issue was its relationship to his service, in that case in the Royal Australian Navy between 1942 and 1945.