Bracken and Repatriation Commission

Case [2001] AATA 976

DECISION AND REASONS FOR DECISION [2001] AATA 976

ADMINISTRATIVE APPEALS TRIBUNAL                )         No N2000/907

)

VETERANS' APPEALS  DIVISION     )        
         Re      THOMAS A BRACKEN         
  Applicant
         And    REPATRIATION COMMISSION         
  Respondent

DECISION

Tribunal        Ms G Ettinger  Senior Member Mr A Limbury   Member

Date               30 November  2001

PlaceSydney

Decision        The Administrative Appeals Tribunal ("the Tribunal") sets aside that part of the decision of the Repatriation Commission dated 26 June 1999 as affirmed by the Veterans' Review Board on 14 March 2000, rejecting the Applicant, Mr Thomas Bracken's claims that his panic disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that the Applicant's condition of depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. By agreement of the parties the decision of the Repatriation Commission in relation to Mr Bracken's condition of chronic solar skin damage is affirmed. The Applicant is entitled to be paid pension at the EDA rate on and from 18 November 1998.

Ms G Ettinger
  Senior Member
CATCHWORDS
Veteran's Appeals - operational service - whether smoking increased in stressful situation in posting in Malaya - whether Veteran meets requirements of the SoPs – depressive disease and alcohol dependence, ischaemic heart disease, gastro-oesophageal reflux disease war-caused – chronic solar skin damage affirmed by consent -  pension awarded at EDA rate.

LEGISLATION
Veterans' Entitlements Act 1986 sections9, 23, 120(1), 120(3), 120(4) and 120A
Guide to the Assessment of Rates of Veterans' Pensions ("GARP")

STATEMENTS OF PRINCIPLES
Repatriation Medical Authority Statement of Principles No. 58 of 1998 Concerning Depressive Disorder
Repatriation Medical Authority Statement of Principles No.62 of 1999 Concerning Gastro-Oesophageal Reflux Disease as amended by Instrument No.123 of 1999.
Repatriation Medical Authority Statement of Principles No.38 of 1999 Concerning Ischaemic Heart Disease
Repatriation Medical Authority Statement of Principles No.76 of 1998 concerning Alcohol Dependence or Alcohol Abuse

CASES
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commissionv Deledio (1998) 83 FCR 82
Deledio v Repatriation Commission (1997) 47 ALD 261,
Dixon v Repatriation Commission [1999] FCA 582
Davenport v Repatriation Commission [1997] FCA 918
Repatriation Commission v Gorton [2001] FCA 1194
Benjamin and Repatriation Commission [2000] AATA 680
Repatriation Commission v Gosewinckel [1999] FCA 1273
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Williams [2001] FCA 1195

REASONS FOR DECISION

30 November 2001  Ms G Ettinger Senior Member

Mr A Limbury  Member

  1. The matter before the Administrative Appeals Tribunal ("the Tribunal") was the application of Mr Thomas Bracken ("the Applicant") to review those parts of the decision of the delegate of the Repatriation Commission ("the Respondent") dated 26 June 1999 (T16), which refused his claim that his panic disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"). This…

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AGLC
Bracken and Repatriation Commission [2001] AATA 976
Case
[2001] AATA 976
Decision Date

CaseChat Overview and Summary

In the case of Bracken and Repatriation Commission, the applicant, Mr Thomas Bracken, appealed against the decision of the Repatriation Commission to reject his claims that his panic disorder, alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant's conditions were caused or aggravated by his service in the Royal Australian Navy during the Malaya Emergency. The Tribunal also needed to decide whether the applicant's lifestyle rating was appropriate for pension eligibility.

The Tribunal found that the applicant's lifestyle rating of 5.5 rounded up to 6, making him eligible for pension at the EDA rate. With regard to the applicant's claims, the Tribunal concluded that the applicant's depressive disorder, alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were indeed war-caused. The Tribunal found that the applicant's experiences in the Navy, particularly in the Far East Strategic Reserve, had exposed him to high levels of stress and anxiety, which contributed to the onset of his conditions. The Tribunal accepted that the applicant's smoking increased in the stressful situation in Malaya, but found that this was not the primary cause of his conditions.

The Tribunal set aside the decision of the Repatriation Commission to reject the applicant's claims and substituted a finding that the applicant's conditions were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The Tribunal affirmed the decision of the Repatriation Commission in relation to the applicant's condition of chronic solar skin damage. The applicant was entitled to be paid pension at the EDA rate from 18 November 1998.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Bracken gave oral evidence before the Tribunal. He was cross-examined by Ms Breuer with regard to his claims that his conditions were war-caused, and by Ms McConnell, with regard to his life-style ratings. EVIDENCE OF THE APPLICANT - MR THOMAS BRACKEN Mr Bracken, whose date of birth was 28 February 1933, enlisted in the Royal Australian Navy ("the Navy") on 23 November 1950, at the age of 17 and a half. His statement dated 1 October 2000, was before the Tribunal as Exhibit A4. It was written in reply to the statements of Mr J Tilbrook CSM, RFD, of Write Way Research Service whose reports were before the Tribunal as Exhibits R6 and R7. Mr Bracken gave oral evidence that it was part of his family tradition to join the Navy, and that he enjoyed the Navy before his operational service commenced in 1956. He said that after training, he was posted on HMAS Australia as a stoker. He said that he enjoyed the camaraderie and travelled to England and to Italy. Mr Bracken said that the atmosphere and the routine on the ship on which he was posted changed when he came to the Far East Strategic Reserve ("FESR"). He said that from then on, there was a hierarchy on the ship, and communications to the staff were unsatisfactory. There was an air of secrecy regarding what was going on, and more than usual "readiness" [for war]. Previously, everybody had been getting on well, he said. The Applicant said that he was distressed by the military activity. He said that the men worked long hours; they were not told why, and there was tension, stress and anxiety. He said that he was frightened, frightened that he may be involved in war, and die. Mr Bracken told the Tribunal that when he arrived at Singapore, there was a feeling of hostility against the British, and he had never before experienced that. Ms Breuer asked Mr Bracken if his shore visits had been voluntary, ascertaining that in fact there were two visits and that both had been voluntary. Mr Bracken recalled when questioned by Ms Breuer, that HMAS Melbourne had been open to visitors in Singapore, and that a party of school children had visited on 1 October 1956. Mr Bracken said that he also went to Hong Kong where the civil unrest he experienced was even worse. He said he was frightened there. He said that whilst on the ferry near Kowloon, he heard a burst of gunfire. He said that he hit the deck and thought his life was in danger. Ms Breuer cross-examined Mr Bracken with regard to his anxieties. He acknowledged that his colleague Mr Bradbury had died, and was buried at sea as a result of complications from an infected appendix. Mr Bracken agreed that for an 18 year old as he was at the time, it was a "pretty daunting experience". Ms Breuer also questioned Mr Bracken about his experiences aboard HMAS Vengeance, an aircraft carrier where he served for three years, and where he had been posted in the engine room. The Veteran described flying exercises taking place daily when the ship was at sea. He said that he was also posted on HMAS Melbourne, an aircraft carrier, where he was partly on the flight deck, and partly in the engine room. He said that there was an atmosphere of fear because the crew were not told whether the planes were simply carrying out flying exercises, or whether they were being attacked.

Decision

Reasons for decision

MR J
The Tribunal was satisfied to the requisite standard that Mr Bracken rated as follows: Table 22.1 (five); Table 22.2 (five); Table 22.3 (six); Table 22.4 (six); and Table 22.5 (five). His lifestyle rating was therefore, 5.5 which rounded up makes 6. He is therefore eligible for pension at the EDA rate.DECISION The Administrative Appeals Tribunal sets aside that part of the decision of the Repatriation Commission dated 26 June 1999 as affirmed by the Veterans' Review Board on 14 March 2000, rejecting the Applicant, Mr Thomas Bracken's claims that his panic disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that the Applicant's condition of depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.By agreement of the parties the decision of the Respondent in relation to Mr Bracken's condition of chronic solar skin damage is affirmed.The Applicant is entitled to be paid pension at the EDA rate on and from 18 November 1998.

Ratio Decidendi

Legal Principle Established

Established by: MR J

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