Boyd and Repatriation Commission - [2000] AATA 615

DECISION AND REASONS FOR DECISION [2000] AATA 615

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q1998/494

VETERANS' APPEALS DIVISION          )
           Re      GRAHAM IAN BOYD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Capt E T Keane OAM RAN Rtd (Member) Dr J M Lawrence AM (Member)

Date27 July 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

Decision No. (Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS : Disability Pension – Statement of Principles – Reasonable hypothesis – Post Traumatic Stress Disorder – Psychoactive Substance Abuse or Dependence – Whether PTSD or PSAD causally related to service

Veterans' Entitlements Act 1986 – s9, s13, s120(1), s120(3), s120A(3), s196B

Repatriation Commission v Deledio (1998) 49 ALD 193
Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1

REASONS FOR DECISION

Mr K L Beddoe (Senior Member)
Capt E T Keane OAM RAN Rtd (Member)
Dr J M Lawrence AM (Member)

The applicant seeks review of a decision made by the respondent on 27 May 1997 to refuse payment of a disability pension on the grounds that the veteran did not satisfy the Statement of Principles ("SoP") relevant to the claimed conditions of Post Traumatic Stress Disorder ("PTSD") and Psychoactive Substance Abuse or Dependence ("PSAD"). That decision was subsequently affirmed by the Veterans' Review Board on 16 April 1998 (T2). The applicant says that the claimed conditions arose out of operational service in Vietnam.
At the hearing Mr O'Gorman of counsel appeared for the applicant and Mr Dobbie appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were put before the Tribunal as the T documents and further documents were tendered and marked as exhibits. The Tribunal heard oral evidence from the applicant and 2 other witnesses with medical evidence from Dr Lawford.
The issue before the Tribunal in considering the applicant's entitlement to a disability pension is whether the applicant's accepted PTSD and PSAD are war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
Section 13 of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease the Commonwealth is liable to pay a pension to the veteran.
For the purposes of this case a "war-caused disease" is defined in section 9 to mean:
"(1)…a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the…disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the…disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…"

It was not disputed that for the purposes of section 6C of the Act the applicant rendered operational service and as such eligible war service in accordance with section 7 of the Act.

Section 120 of the Act sets…

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.

Continue reading Boyd and Repatriation Commission

Details

AGLC: Boyd and Repatriation Commission [2000] AATA 615
Case: [2000] AATA 615
Decision Date: 27 July 2000

CaseChat Overview and Summary

In the case of Repatriation Commission v Boyd, the applicant, a former serviceman, sought a disability pension on the grounds of Post Traumatic Stress Disorder (PTSD) and Psychoactive Substance Abuse or Dependence (PSAD). The dispute centred on whether these conditions were causally related to his service in the Royal Australian Navy. The case was heard in the Administrative Appeals Tribunal.

The primary legal issue was whether the applicant's PTSD and PSAD were reasonably connected to his military service. This required a determination of whether the applicant's conditions met the criteria set out in the relevant Statement of Principles (SoP) under the Veterans' Entitlements Act 1986. The tribunal had to consider if the applicant's conditions originated from his service and if they were consistent with the medical evidence and the statutory framework.

The tribunal first examined all the material before it to determine if it pointed to a hypothesis linking the applicant's conditions to his service. Given that an SoP for PTSD was in force, the tribunal assessed whether the hypothesis was reasonable by checking if it aligned with the SoP. The tribunal found that the applicant did suffer from PTSD, but the crucial question was whether it was war-caused. The tribunal concluded that the applicant's PTSD was reasonably connected to his service, fulfilling the statutory requirements. The tribunal also found that the applicant's PSAD was not relevant to the claim as it did not meet the criteria under the SoP.

The tribunal ultimately determined that the applicant's PTSD was war-caused, and he was entitled to a disability pension. The tribunal's decision was based on the reasonable hypothesis that the applicant's PTSD was materially contributed to by his service, in line with the statutory provisions and the SoP.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Evidence was given to the Tribunal by Mr Rodney Nott, a Gunnery Officer in HMAS Parramatta, at a time subsequent to the applicant's service in the ship. In a letter to the applicant's solicitors dated 10 June 1999 (Exhibit C) Mr Nott has corrected details that appear in the applicant's statement. In his oral evidence Mr Nott said that detonations from scare charges would not be a surprise as sailors would be aware when divers could be expected to be in the water. He also said that Action Stations involved all crew members and should have been recorded in the Ship's Log (Exhibit 1), but may have been omitted. Further Mr Nott said procedure was to inform the crew about drills. This is in contrast to the applicant's evidence that he was never informed as to the ship's status or whether the action taken was a drill or whether enemy divers were sighted (Exhibit A).The Medical Evidence Document T4, folios 5 to 7 are clinical notes which show the applicant was first admitted to the RANH Penguin as an in-patient on 14 November 1966 for a period of 25 days for anxiety. Reference is made to the "considerable domestic trouble" and agitated state of the applicant which resulted in both the applicant and his wife being interviewed by a Consultant Psychiatrist who recommended a prolonged course of Librium. Further clinical notes (T4, folios 8-11) for the period 3 January 1967 to 21 February 1967 indicate that the applicant was subsequently referred to the Concord RGH for a psychiatric assessment with a psychologist where he was diagnosed as suffering from Hysterical Personality Disorder as well as functional manifestations. His treating Psychiatrist, Dr McGeorge recommended that the applicant be discharged from the RAN. Report of a Final Medical Board dated 9 March 1967 (T4/13-16) shows that the applicant was diagnosed as having an Acute Anxiety State which originated in November 1966 whilst he was serving at HMAS Penguin (outside the period of operational service). He received treatment at the Balmoral Naval Hospital from November to December 1966 and the Concord Repatriation Hospital from January to February 1967. The Medical Board found that this condition was constitutional from within the applicant and that he was permanently unfit for duty and should be discharged on the grounds of Hysterical Personality Disorder. The Board makes the comment that the source of his blackouts has been fully investigated and no abnormality can be detected. The report also shows that the applicant contracted venereal disease in 1965 whilst on service with HMAS Parramatta. We do not know if this condition may have been a contributing factor to the domestic difficulties encountered upon the applicant's return to domestic life. Document T4, folios 25 to 27 is a report by Dr Bruce Lawford, Consultant Psychiatrist dated 19 July 1996. In this report, Dr Lawford sets out the applicant's history and says that the applicant meets the criteria for PTSD and that his condition is chronic and permanent. He says the applicant suffers from irritability, is hypervigilant, has difficulty concentrating and suffers from exaggerated startle response. Dr Lawford said the duration of these conditions has been for many years and causes clinically significant distress and impairment in social and occupational functioning. The doctor considered the applicant's prognosis to be guarded and unlikely that the applicant would be able to return to work.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The doctor expressed the opinion that the applicant has intrusive recollections of his Navy Service including sleep disturbance with distressing apprehension and phobic fears of being in locked premises, coming to the conclusion that the applicant tends to fulfil the criteria of PTSD and PSAD in accordance with the relevant SoP's.Consideration After considering the material before us we have come to the view that the applicant does indeed suffer from the condition of PTSD. However the difficulty before the Tribunal is whether the PTSD is, as a matter of hypothesis war-caused pursuant to section 9 of the Act being materially contributed to by the applicant's eligible war service. Because of the operation of section 120A of the Act the hypothesis can only be accepted as a reasonable hypothesis if the applicant's circumstances fall within the criteria of the SoP relating to PTSD. The hypothesis will not be reasonable if it is obviously fanciful or untenable so that the claim must fail. The hypothesis will also not be reasonable if it fails the test of section 120A of the Act. The steps to be followed were set out by the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. There the Court discussed the authorities and following dicta of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1, and Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1, but taking into account the enactment of section 120A and related provisions, the Full Court set out the course which must be taken in cases where section 120A (on the facts of this case) operates to require that the reasonableness of the hypothesis is to be assessed by reference to a Statement of Principles made under section 196B of the Act. The Full Court said at 49 ALD 206:"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person as follows:1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11)……3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.4.The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."