Alan Frank Groome v Repatriation Commission - [2001] AATA 794

DECISION AND REASONS FOR DECISION [2001]AATA 794

ADMINISTRATIVE APPEALS TRIBUNAL      )  No N2000/1163
VETERANS' APPEALS DIVISION       )
           Re      ALAN FRANK GROOME  Applicant

And REPATRIATION COMMISSION
Respondent
DECISION

Tribunal MS N BELL, Member

Date19 September 2001
PlaceSydney

Decision The tribunal sets aside the decision under review and in substitution for the decision determines that: a) the diagnosis of the claimed condition is amended to "post traumatic stress disorder and depressive disorder"; b) the conditions of post traumatic stress disorder and depressive disorder are war caused diseases, with effect from 9 January 1999; and c) the matter be remitted to the Respondent to assess the rate of pension payable to the Applicant.

[SGD] Ms N Bell
Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – appropriate diagnosis of the Applicant's condition – standard of proof of "reasonable satisfaction" – post traumatic stress disorder – depressive disorder – whether condition is war-caused – whether material points to hypotheses connecting the Applicants' symptoms with his operational service – consistency between hypotheses and statements of principles – reasonable hypothesis – whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determination that any disease by which the Applicant is incapacitated is war-caused

Veterans' Entitlements Act 1986 – sections 9, 120, 120A
Statement of Principles Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 (concerning Post Traumatic Stress Disorder)
Statement of Principles Instrument No 58 of 1998 (concerning Depressive Disorder)
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Howe and Repatriation Commission (1999) 59 ALD 309
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Benjamin v Repatriation Commission [2000] AATA 902

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mr Alan Frank Groome ("the Applicant") for a review of the decision of the Repatriation Commission ("the Respondent") dated 14 October 1999 to refuse the Applicant's claim for dysthymic disorder (T2). The Respondent's decision was affirmed by the Veterans' Review Board ("VRB") on 21 June 2000 (T20).
At the hearing the Applicant was represented by Mr Price and the Respondent was represented by Ms McConnell. The Applicant gave oral evidence at the hearing, as did his wife, Mrs Lynda Maureen Groome.
The following documents were taken into evidence:
Exhibit No     Description    Date
T1-T24 pp1-78         T-Documents pursuant to s 37 of the Administrative Appeals Tribunal Act 197526 August 2000
A1      Applicant's Statement of Facts and Contentions          24 January 2001
A2      Statement of Trevor Collier, Dean of Studies, Faculty of Tourism and Hospitality   15 May 2000
A3      Statement of the Applicant 23 November 2000
A4      Medical Report of Dr G Altman     27 December 2000
R1      Respondent's Statement of Facts and Contentions     30 July 2001
R2      Medical report of Dr John Shand 11 December 2000
R3      Historical research report by C H Ducker 4 January 2001
R4      Medical report of Dr John Shand 31 January 2001

issues

The issues, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 794
Decision Date: 19 September 2001

CaseChat Overview and Summary

In the case of Alan Frank Groome versus Repatriation Commission, the Applicant sought a disability pension on the basis that he suffered from post-traumatic stress disorder (PTSD) and a depressive disorder, both of which he claimed were war-caused. The dispute centred on whether these conditions were connected to his operational service in Vietnam and whether the evidence presented was sufficient to meet the standard of proof required under the relevant legislation.

The court was required to determine whether the Applicant's evidence established a reasonable hypothesis that his PTSD and depressive disorder were war-caused, and whether the Tribunal was satisfied beyond reasonable doubt that there were sufficient grounds to determine that the conditions were not war-caused. The court had to consider the consistency of the Applicant's evidence with any applicable statements of principles and whether the standard of proof was appropriately applied.

The court found that the Tribunal had properly applied the relevant legislative provisions, particularly the standard of proof required under section 120(4) of the Act. It was established that the Applicant's evidence was consistent with the statements of principles for PTSD, and the Tribunal had reasonably satisfied itself beyond reasonable doubt that the Applicant's conditions were war-caused. The court upheld the Tribunal's decision and dismissed the Respondent's appeal.

No further orders were made by the court beyond the dismissal of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Sections 120 and 120A are set out later in this statement of reasons.background The Applicant was born on 21 October 1944. He joined the Army on 22 February 1962 and left on 9 March 1987. He rendered operational service from 11 February 1966 to 8 February 1967 in South Vietnam, having volunteered to do so. His operational service took place in Vung Tau at the Rest and Convalescence Centre. The Applicant served as a cook. On return to Australia the Applicant remained in the Army and ultimately progressed to the rank of Warrant Officer Class 2. After leaving the Army the Applicant began work as a teacher in a Technical and Further Education (TAFE) College in the area of commercial cookery. He remains in that employment. These matters are common ground between the Applicant and the Respondent. evidence relevant to the issues applicant's evidence The Applicant, in his oral evidence to the Tribunal, confirmed that he was born on 22 October 1944 and joined the Army on 22 February 1962. He volunteered for service in South Vietnam and his service in Vung Tau commenced on 15 February 1966. He was posted to the Australian Rest and Convalescence Centre situated at Front Beach, some 15 minutes walk from the U.S. Air Base. The following is an extract, (with paragraph numbers removed) of a statement by the Applicant dated 23 November 2000 (Exhibit A3) provided in answer to a request for further particulars by the Respondent:"The attack on the American air base definitely consisted of in-coming mortar rounds, and not rockets.The attack took place in either the last week of February, or in the first two weeks of March, 1996.I cannot remember the exact day of the week that the attack took place, but I believe that it was either a Tuesday or a Wednesday.The attack took place at approximately 2030 to 2045 hours, and consisted of four mortar rounds being fired into the American air base at Vung Tau.I had gone to the air base to visit three American servicemen that worked on the base in the ration supply depot that supplied our unit.We were walking back to their barracks when the rounds fell on the other side of the building we were next to, and I estimate the impact area to be approximately 100 to 150 yards away from us. The rounds fell in a pattern of "1-2-34".We ran the rest of the way to the barracks in sheer terror, and attempted to get to the weapons locker in an effort to protect ourselves, as we believed we were under attack. The American Sergeant responsible for the security of the weapons was in Vung Tau and we were unable to get the lockers open.One of the other occupants of the hut notified the base M.P.'s of the situation and they, too, were unable to open the locker. They then ordered the soldiers to get weapons from one of the other huts. I must stress that we were all in a state of complete panic at this time. When it was realised that I was an Australian and not part of their unit, the M.P. said that he would drop me off at my unit as he had to go into town to pick up any American personnel that were there.The next day I heard reports from some of our staff who had to go out to the air base, that the mortar rounds had only damaged some huts and equipment and left "huge" holes in the ground. I believe that it was only sheer luck that no one was killed or injured.For approximately the next four weeks, other staff went to the air base to pick our rations up on supply days, as I was still too frightened to return to it.The three American soldiers I was with at the time came to visit our villa about four weeks after the attack, and by talking to them and discussing the attack, I became more settled in my mind about that night, but, whenever I heard mortars or explosions, I again feared for my life. I constantly imagined what could have happened had I have been closer that night."

Evidence

Evidence Before The Court

On return to Australia the Applicant remained in the Army and ultimately progressed to the rank of Warrant Officer Class 2. After leaving the Army the Applicant began work as a teacher in a Technical and Further Education (TAFE) College in the area of commercial cookery. He remains in that employment. These matters are common ground between the Applicant and the Respondent. evidence relevant to the issues applicant's evidence The Applicant, in his oral evidence to the Tribunal, confirmed that he was born on 22 October 1944 and joined the Army on 22 February 1962. He volunteered for service in South Vietnam and his service in Vung Tau commenced on 15 February 1966. He was posted to the Australian Rest and Convalescence Centre situated at Front Beach, some 15 minutes walk from the U.S. Air Base. The following is an extract, (with paragraph numbers removed) of a statement by the Applicant dated 23 November 2000 (Exhibit A3) provided in answer to a request for further particulars by the Respondent:"The attack on the American air base definitely consisted of in-coming mortar rounds, and not rockets.The attack took place in either the last week of February, or in the first two weeks of March, 1996.I cannot remember the exact day of the week that the attack took place, but I believe that it was either a Tuesday or a Wednesday.The attack took place at approximately 2030 to 2045 hours, and consisted of four mortar rounds being fired into the American air base at Vung Tau.I had gone to the air base to visit three American servicemen that worked on the base in the ration supply depot that supplied our unit.We were walking back to their barracks when the rounds fell on the other side of the building we were next to, and I estimate the impact area to be approximately 100 to 150 yards away from us. The rounds fell in a pattern of "1-2-34".We ran the rest of the way to the barracks in sheer terror, and attempted to get to the weapons locker in an effort to protect ourselves, as we believed we were under attack. The American Sergeant responsible for the security of the weapons was in Vung Tau and we were unable to get the lockers open.One of the other occupants of the hut notified the base M.P.'s of the situation and they, too, were unable to open the locker. They then ordered the soldiers to get weapons from one of the other huts. I must stress that we were all in a state of complete panic at this time. When it was realised that I was an Australian and not part of their unit, the M.P. said that he would drop me off at my unit as he had to go into town to pick up any American personnel that were there.The next day I heard reports from some of our staff who had to go out to the air base, that the mortar rounds had only damaged some huts and equipment and left "huge" holes in the ground. I believe that it was only sheer luck that no one was killed or injured.For approximately the next four weeks, other staff went to the air base to pick our rations up on supply days, as I was still too frightened to return to it.The three American soldiers I was with at the time came to visit our villa about four weeks after the attack, and by talking to them and discussing the attack, I became more settled in my mind about that night, but, whenever I heard mortars or explosions, I again feared for my life. I constantly imagined what could have happened had I have been closer that night."

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Ms McConnell directed the Tribunal to the decisions of the Federal Court in Repatriation Commission v Gosewinckel [1999] FCA 1273 and Benjamin v Repatriation Commission [2001] FCA 522. Ms McConnell also submitted, as did Mr Price, that the standard of proof for determining whether the Applicant suffers from post traumatic stress disorder is that of reasonable satisfaction as provided in section 120(4) of the Act. consideration It is convenient here to set out the relevant provisions of sections 120 and 120A of the Act:"120 Standard of proof(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.Note: This subsection is affected by section 120A.…(3) In applying subsection (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.Note: This subsection is affected by section 120A.(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.Note: This subsection is affected by section 120B.…120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1) This section applies to any of the following claims made on or after 1 June 1994:(a) a claim under Part II that relates to the operational service rendered by a veteran;…(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or(b) has declared that it does not propose to make such a Statement of Principles.(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or 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.Note: See subsection (4) about the application of this subsection.(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."