Benjamin v Repatriation Commission [2001] FCA 1879
VETERANS’ AFFAIRS – entitlement to disability pension – characterisation of condition – whether decision maker obliged to limit determination to case articulated by applicant – standard of proof – stages of decision making envisaged by Veterans’ Entitlements Act 1986 – whether a Statement of Principles made under Part XIA of Veterans’ Entitlements Act 1986 relevant to diagnosis of relevant injury, disease or death – whether appellant entitled to pension at special rate as provided by s 24 Veterans’ Entitlements Act 1986
DAVID HEDLEY JEFFERY BENJAMIN v REPATRIATION COMMISSION
N 943 OF 2001
MOORE, EMMETT & ALLSOP JJ 21 DECEMBER 2001 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 943 OF 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
DAVID HEDLEY JEFFERY BENJAMIN APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGES:
MOORE, EMMETT & ALLSOP JJ
DATE OF ORDER:
21 DECEMBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be upheld.
2. The orders of the primary judge be set aside.
3. In lieu of those orders, the decision of the Tribunal be set aside
4. The matter be remitted to the Tribunal for determination, according to law, of the question of whether the Veteran suffers from a war caused disease other than PTSD.
5. The respondent pay the appellant’s costs of the application and the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 943 OF 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
DAVID HEDLEY JEFFERY BENJAMIN APPELLANT
AND:
REPATRIATION COMMISSION RESPONDENT
JUDGES:
MOORE, EMMETT & ALLSOP JJ
DATE:
21 DECEMBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
The appellant, David Hedley Jeffery Benjamin (“the Veteran”), made a claim under the Veterans Entitlement Act 1986 (Cth) (“the Act”) for a disability pension and medical treatment. A delegate of the respondent, the Repatriation Commission (“the Commission”), refused the claim. The Veteran applied for review of the Commission’s decision by the Veterans Review Board (“the Board”). The Board affirmed the delegate’s decision.
The Veteran then sought review by the Administrative Appeals Tribunal (“the Tribunal”) of the delegate’s decision as affirmed by the Board. On 9 August 2000, the Tribunal decided that:
· psychoactive substance abuse should be accepted as a war caused condition of the Veteran;
· post traumatic stress disorder should be rejected as a war caused condition of the Veteran;
· the Veteran is not entitled to pension at the “special rate”.
The Tribunal set aside the decision under review and remitted the matter to the Commission to determine the Veteran’s general rate of pension.
The Veteran appealed…
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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AGLC
Benjamin v Repatriation Commission [2001] FCA 1879
Case
[2001] FCA 1879
Decision Date
CaseChat Overview and Summary
In the case of Benjamin v Repatriation Commission, the central issue was whether the veteran, who served in the Royal Australian Navy during 1968 and 1969, was entitled to compensation for post-traumatic stress disorder (PTSD) and alcohol dependence allegedly arising from his service. The dispute required determination of the legal criteria for PTSD and the causal connection between the veteran’s war service and his claimed conditions. The Tribunal had to assess whether the veteran met the diagnostic criteria for PTSD and alcohol abuse or dependence, if there was a causal link between these conditions and the veteran’s service, and the veteran’s eligibility for special rate.
The court examined the statutory provisions and the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to understand the diagnostic criteria for PTSD. The Tribunal received conflicting medical opinions, with some psychiatrists diagnosing PTSD and alcohol dependence linked to the veteran's service, while others did not. The court had to weigh these expert opinions and determine whether the veteran’s PTSD and alcohol dependence were indeed war-caused disabilities. The Tribunal’s findings and reasoning were scrutinized to ensure that they complied with the relevant statutory requirements and medical standards.
The court concluded that the Tribunal had not adequately addressed the statutory requirements and had failed to determine whether the veteran suffered from a war-caused disease other than PTSD. The court set aside the Tribunal’s decision and remitted the matter back to the Tribunal for a fresh determination in accordance with the law. The court highlighted the need for the Tribunal to properly apply the statutory criteria and to provide detailed reasons for its conclusions regarding the veteran’s conditions and their connection to his war service. The court also ordered that the respondent pay the appellant’s costs of the application and the appeal.
Orders
Orders of the court
1. The appeal be upheld.
2. The orders of the primary judge be set aside.
3. In lieu of those orders, the decision of the Tribunal be set aside
4. The matter be remitted to the Tribunal for determination, according to law, of the question of whether the Veteran suffers from a war caused disease other than PTSD.
5. The respondent pay the appellant’s costs of the application and the appeal.
Background
Background to the litigation
Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis. However, under s 120A(4), s 120A(3) does not apply in relation to a claim with respect to the incapacity from disease of a person if the Authority has neither determined an SoP, nor declared that it does not propose to make such an SoP, in respect of the kind of disease contracted by that person.FACTUAL BACKGROUND The Veteran served in the Royal Australian Navy and rendered operational service, which is classified as eligible war service for the purpose of the Act, during thirteen discrete periods in 1968 and 1969. That service was mostly as a member of the complement of MV Jeparit, a merchant ship chartered by the Department of Defence for the transport of supplies to South Vietnam. The Veteran was one of a number of Navy personnel who served on the ship in that period, along with members of the MV Jeparit’s merchant navy crew. The Veteran told the Tribunal that he joined the Navy at age seventeen and served aboard several vessels in Far Eastern seas before his involvement on the MV Jeparit. He said that he began drinking in the Navy but considered himself a moderate drinker until after he went to South Vietnam, at which time he began craving alcohol. However, he was only allowed up to two cans per beer per day on Navy vessels and would occasionally get drunk prior to joining the MV Jeparit. His tolerance to alcohol increased during his service on the MV Jeparit, since he was able to drink as much as he wanted on that vessel. The Veteran described to the Tribunal an incident in Vung Tau, when an alert was issued that divers were attempting to attach mines to the MV Jeparit. He was moved on to the wharf while the ship was checked. He had been drinking before and during the incident and said that he felt very confused and very afraid, especially as he did not know what was going on. He also described a further incident in Vung Tau during the Tet Offensive, at which time there were bombardments and rifle fire occurring in close proximity to the MV Jeparit, although at least a couple of kilometres away. The Veteran lodged a claim under s 14 of the Act on 19 September 1997. In answer to a requirement in the claim form that he provide details of any illnesses suffered during service that related to the claim, he responded as follows:“PTSD. Whilst serving in Navy I went to SVN arriving on various ships. My main tours were on the Jeparit which took supplies to land forces. I feared for my life as we were constantly under threat of attack by enemy sappers, mortars, rockets, etc. We were defenceless in case of attack and those memories are still with me today….”It is common ground that the expression “PTSD” is a generally accepted acronym for the disease known as “post traumatic stress disorder”. It will be used in that way hereafter.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The reference in that definition to “DSM-IV” is a reference to the fourth edition of a publication of the American Psychiatric Association entitled Diagnostic and Statistical Manual of Mental Disorders. The relevant part of DSM-IV states that the essential feature of post traumatic stress disorder is:“The development of characteristic symptoms following exposure to an extreme stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate.”DSM-IV says that the person’s response to the event “must involve intense fear, helplessness or horror”. It states that the “stressor” must be “of an extreme (i.e. life threatening) nature”.THE TRIBUNAL’S DECISION The Tribunal characterised the proceeding before it as one for review of a decision relating to the Veteran’s “claim for post traumatic stress disorder and alcohol dependence”. In its reasons, the Tribunal formulated the issues before it as follows:· whether or not the Veteran meets the relevant diagnostic criterion for PTSD and alcohol abuse or dependence;· if so, whether or not there is a causal connection between the conditions and his war service;· the Veteran’s eligibility for special rate. The Tribunal received evidence from a number of medical practitioners being:· Dr A. Dinnen, Consultant Psychiatrist, who expressed the opinion that the Veteran suffers from alcohol dependence due to his service in the Navy and as a result of operational service. Dr Dinnen said that the Veteran may have had a degree of PTSD but that any such condition had been dissolved in alcohol for many years. He did not see enough evidence to sustain a PTSD diagnosis but said that that condition might possibly be linked with alcohol dependence and the PTSD symptoms masked accordingly.· Dr K. Reinhardt, Consultant Psychiatrist, who had been treating the Veteran since 1997. Dr Reinhardt’s opinion was that the Veteran continues to meet DSM-IV criteria for chronic PTSD and alcohol abuse and that that is a war caused disability. Dr Reinhardt told the Tribunal that the PTSD and alcohol abuse dependence were inter-related.· Dr R. Lewin, Consultant Psychiatrist, did not diagnose PTSD in the Veteran’s case, expressing the opinion that the Veteran did not satisfy diagnostic criteria. Dr Lewin did not relate the Veteran’s current alcohol dependence to his military experience.· Dr M. Baz, Occupational Physician, considered that the Veteran experiences significant disability as a consequence of PTSD and alcohol dependence and that he was unfit for employment within his skills and experience of more than eight or more hours duration weekly.· Dr Burns, Occupational Physician, expressed the opinion that the Veteran had some work capacity but that due to his age, his geographic location and his alcohol dependence, it was unlikely that he would find suitable employment. Dr Burns considered that it was difficult to reconcile the history given to him by the Veteran as to his experiences in Vietnam with PTSD.The Tribunal also had before it Dr Dunstan’s medical impairment assessment – see paragraph [21] above.PTSD