Bailey and Repatriation Commission (Veterans' entitlements) - [2021] AATA 572

Bailey and Repatriation Commission (Veterans' entitlements) [2021] AATA 572 (17 March 2021)
Division:VETERANS' APPEALS DIVISION

File Number: 2016/6386
Re:James Bailey
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:R CAMERON SENIOR MEMBER.
Date:17 March 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.............[]..........................................
R CAMERON SENIOR MEMBER
Catchwords
VETERANS AFFAIRS – conditions – war caused – Statement of Principles – Deledio steps – Veteran Entitlement Act – Veterans Review Board – Royal Australian Navy – Statement of Principles – decision under review is affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Bailey v Repatriation Commission [2019] FCA 1840
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
R CAMERON SENIOR MEMBER.
17 March 2021
INTRODUCTION.

Unfortunately, since the commencement of this matter the Applicant has passed away. Insofar as it is relevant, the Tribunal notes that the parties have agreed that the application be continued by the executor nominated in his will on behalf of the deceased estate.
For some time, the Applicant had been in receipt of a disability pension for the accepted disabilities of Chronic Bronchitis and Emphysema, under the applicable provisions of the Veterans Entitlement Act 1986 (Cth) (“the Act”).
On 29 May 2015, the Applicant made a claim to the Respondent Commission to increase the rate at which he received a disability pension, due to a claimed condition of cirrhosis of the liver caused by drinking alcohol, which had been diagnosed that year. He contended that his excessive drinking habits that caused his cirrhosis of the liver, had been triggered as a result of stressors he was exposed to during operational service undertaken by him whilst serving as a member of the Royal Australian Navy between July 1960 in July 1972.
On 9 October 2015, a delegate of the Respondent Commission rejected the Applicant’s claim for the increased rate of disability pension. The grounds relied on by the Respondent’s delegate were that it included the Applicant’s condition of cirrhosis of the liver was not caused by his operational service. This result was predicated on a finding concerning the Applicant’s drinking habits prior to his commencement on operational service. Additionally, there was a finding that his operational service had not exacerbated the claimed condition being cirrhosis of the liver.
As he was entitled to do, the Applicant sought review of the decision of the delegate by an appeal to the Veterans Review Board (“VRB”). The VRB on 27 September 2016 affirmed the decision of the delegate.
The Applicant took the matter to this Tribunal constituted by another Senior Member seeking further review. That presiding Senior Member of this Tribunal also affirmed the decision under review from the VRB on 25 October 2017.
An application was made to the Federal Court of Australia appealing against the decision of this Tribunal of 25 October 2017.…

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: [2021] AATA 572
Decision Date: 17 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision of the Repatriation Commission affirming a decision of the Veterans Review Board. The Applicant, a former member of the Royal Australian Navy, sought to establish that his condition of cirrhosis of the liver was war-caused, entitling him to certain veterans' entitlements. The dispute centred on whether the Applicant's excessive alcohol consumption, which led to his condition, was a consequence of his service, particularly during periods of operational service in the Malay Peninsula and Singapore.

The primary legal issue before the Tribunal was to determine whether the Applicant had discharged the onus of proving, on the balance of probabilities, that his cirrhosis of the liver was war-caused, applying the principles established in *Deledio*. This required the Tribunal to assess whether the factual basis of the Applicant's hypothesis – that his increased and continued heavy drinking post-service was a result of stress and anxiety experienced during operational service – had been disproved beyond reasonable doubt by the Respondent.

The Tribunal found that while the Applicant provided evidence of stressors during his operational service, this evidence did not establish that these stressors led to increased or continued heavy drinking post-service that caused his cirrhosis. Instead, the Applicant's own admissions indicated a consistent pattern of excessive drinking that commenced from his posting to HMAS Anzac in 1961, before he undertook any operational service. This pattern of problem drinking, described as binge drinking and heavy drinking, continued unabated until his diagnosis in 2015. The Tribunal concluded, based on the Applicant's evidence of consuming a significant quantity of alcohol daily from a young age, that the factual foundation of his hypothesis was disproved beyond reasonable doubt.

Consequently, the Tribunal was satisfied beyond reasonable doubt that the Applicant's condition of cirrhosis of the liver was not war-caused. The decision of the Veterans Review Board was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

There was no viva voce evidence given at the hearing. However, for the sake of completeness it should be observed that the transcript of evidence of the earlier hearing in July 2017 included a record of the viva voce evidence given by the Applicant on that occasion. BACKGROUND. The Applicant was born on 1 October 1944. He joined the Royal Australian Navy on 10 July 1960 at the age of 16 years old. He completed his period of service and was discharged on 10 July 1972. His initial training upon joining the Navy was at HMAS Leeuwin in Western Australia for a period of approximately 12 months. His evidence was that whilst stationed at HMAS Leeuwin the recruits were not permitted to drink alcohol at all, and further, he did not drink alcohol during his time there. Upon the completion of his initial 12 months recruitment training, he was transferred to what he described as the “eastern states” and posted to HMAS Anzac. It was his first sea posting. In both his statement, and viva voce evidence, he said that he commenced drinking alcohol when posted to the HMAS Anzac. His evidence was that during his posting to HMAS Anzac, his consumption of alcohol commenced. The ship’s company were issued with one open 26 ounce can of beer per day depending on the activities that the vessel was engaged in. The ratings were not issued with a large can of beer if for instance, the ship was engaged in exercises with other vessels. His estimate was that whilst at sea, the ship’s company were issued with a can of beer about 50% of the time. Following service on the HMAS Anzac, the Applicant was posted to the HMAS Voyager. His postings to the HMAS Voyager were on two occasions from 17 September 1962 to 4 November 1962 and 9 November 1962 to 9 January 1964. During his posting on HMAS Voyager, he undertook operational service between 8 February 1963 to 1 March 1963, 10 March 1963 to 29 March 1963 and 15 April 1963 to 10 May 1963. More will be said about the operational service rendered by the Applicant later in these reasons. However, precise details of the dates of his eligible war service (operational service) are helpfully contained in paragraph 6 of the VRB decision.[2] The operational service undertaken by the Applicant on HMAS Voyager on the dates identified between February 1963 and May 1963 occurred in the region of the Malay Peninsula and Singapore. [2] Document T 2, page B 4 of the T documents. The Applicant was not posted to the HMAS Voyager when it collided with the aircraft carrier HMAS Melbourne in Jervis Bay on 10 February 1964. However, he did know several members of the crew of that vessel who died in the tragedy. It was the Applicant’s evidence that prior to the first period of operational service in the Malay Peninsula and Singapore which commenced on 8 February 1963, that usually he continued to consume one large can of beer per day when it was available and appropriate to do so. The Applicant stated that he became particularly anxious as a result of undertaking operational service, in an area where it was possible that the vessel upon which he served would come into conflict with Indonesian military forces. It will be recalled that this period was when an armed conflict was occurring in the region of Malaysia and Singapore. This conflict was known as the “Indonesian Confrontation”. For the sake of completeness, it should be observed that this was about the time that Malaysia gained its independence from Great Britain. Further at that time Singapore was a member of the Malay Federation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant gave evidence to the VRB which he repeated before this Tribunal, that for him “a big killer”, was not his overseas service but what happened upon his return. Nobody talked to him. He stated that ex-servicemen were treated very poorly. He described it as arising from “the whole Vietnam issue”. People he had known in his hometown of Hamilton would walk out of a pub if he walked in. It not only made him angry but made him drink more as well. This was after his time on the HMAS Yarra, then HMAS Vendetta and HMAS Vampire. He readily conceded that locals in his hometown of Hamilton simply didn’t want to know him. He described it as having a big impact on a lot of people including himself.Conclusion on the fourth Deledio step The Applicant contended that there was nothing in the material that could satisfy the Tribunal that the factual foundation of the hypothesis has been disproved beyond reasonable doubt. That is the Applicant’s evidence as to his increased drinking and continued heavy post service drinking as a result of the stress and anxiety he experienced during operational service has not been disproved beyond reasonable doubt. The Tribunal does not agree with this contention. Whilst the Applicant gave evidence about the stressors he faced whilst undertaking operational service his evidence did not go so far as contended for in his submissions; namely that they led to increased drinking and continued heavy drinking post service which caused his cirrhosis of the liver. To the contrary his evidence was overall that he maintained a relatively consistent pattern of excessive drinking that commenced from the time of his posting to HMAS Anzac in 1961. The Tribunal is satisfied beyond reasonable doubt that the Applicant’s condition of cirrhosis of the liver was not war caused. This conclusion is reached because of the Applicant’s own admissions. On his evidence, much of which was even given in chief, there was the development of a pattern of problem drinking[32] from a very early age which occurred before he undertook any operational service. Such evidence is overwhelming.[32] The Respondent referred to it as amongst other things, an established pattern of binge drinking and a continuation of a pattern of established heavy drinking. Whichever description is used the Tribunal agrees. His pattern of problem drinking commenced from the time of posting to HMAS Anzac in 1961, when he was still a minor. He drank his full ration of a 26 ounce can of beer every time it was available to him. It will be recalled that when he was ashore whilst serving on that vessel, he left the base every night, and on his evidence drank until he couldn’t drink any more.[33] This is compelling evidence. It ought not be forgotten that he had not yet turned 17 when he was first posted to Anzac. [33] Transcript page 7, lines 13 and 14. The quantity of beer consumed was between 10 and 15 glasses. This evidence was not qualified in any way by the Applicant. The approximate consumption of 15 glasses a day save for when operational service requirements intervened, continued until the diagnosis of his condition cirrhosis of the liver in 2015. It was an unabated and consistent pattern of problem drinking throughout that timespan.

Ratio Decidendi

Legal Principle Established

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