Bradley and Repatriation Commission (Veterans' entitlements) - [2018] AATA 3660

Bradley and Repatriation Commission (Veterans' entitlements) [2018] AATA 3660 (28 September 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/6040
Re:Peter Bradley
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:28 September 2018
Place:Perth

The Tribunal:
1.sets aside the Reviewable Decision dated 26 July 2016; and
2.makes a decision in substitution for the decision so set aside that the Applicant suffers from posttraumatic stress disorder and alcohol use disorder which are
war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

................[sgd]........................................................
Senior Member Dr M Evans
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – whether reasonable hypothesis has been raised – whether posttraumatic stress disorder war-caused – alcohol use disorder – whether Applicant meets the Statement of Principles – decision set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25(1)
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9, s 13(1), s 115A, s 120,
s 120A(3), s 175, s 196B
CASES
Greenough and Repatriation Commission [2002] AATA 774
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (superseded)
Statement of Principles concerning Alcohol Use Disorder No. 48 of 2017
Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008 (superseded)
Statement of Principles concerning Posttraumatic Stress Disorder No. 19 of 2014 (superseded)
Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014
REASONS FOR DECISION
Senior Member Dr M Evans
28 September 2018
BACKGROUND TO THE APPLICATION

The Applicant is 69 years old. He enlisted in the Royal Australian Navy (RAN) on 8 January 1964 when he was 16 years of age, and served in the RAN until his discharge on 7 January 1976 (Exhibit A2, page 1).
Whilst in the RAN the Applicant was trained as a manual electrician (Exhibit A2, para [9]).
The Applicant rendered operational service in South Vietnam while serving on the HMAS Sydney and the HMAS Duchess during the following periods:
(a)8 April 1967 to 22 April 1967;
(b)28 April 1967 to 12 May 1967;
(c)19 May 1967 to 14 April 1967;
(d)20 December 1967 to 3 January 1968;
(e)17 January 1968 to 16 February 1968;
(f)27 March 1968 to 26 April 1968;
(g)3 April 1971 to 8 April 1971; and
(h)17 May 1971 to 1 June 1971 (Exhibit A1, para [5]; Exhibit A2, para [5]; Exhibit R1, T76, page 378).
The Applicant also completed eligible service (Defence Service) from 7 December 1972 until 7 January 1976 (Exhibit A1, para [6]; Exhibit A2, para [4]; T76, page 378).
The Applicant lodged a claim for a disability pension on 1 February 2006 (Exhibit R1, T17, page 45). On 9 May 2006, a delegate of the Repatriation Commission advised the Applicant that he would be granted a disability pension at 50% of the general rate, with effect from 1 November 2005 for his claims of “bilateral sensorineural hearing loss, osteoarthrosis affecting both knees, osteoarthrosis affecting both ankles…

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.

Keep reading for free

Create a free CaseChat account to read Bradley and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 3660
Decision Date: 28 September 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Bradley and the Repatriation Commission concerning the Applicant's claim for veterans' entitlements. The dispute centred on whether the Applicant suffered from post-traumatic stress disorder (PTSD) and alcohol use disorder, and if these conditions were war-caused. The Applicant sought review of a decision made by the Veterans' Review Board.

The primary legal issues before the Tribunal were to determine if the Applicant suffered from PTSD and alcohol use disorder, and crucially, whether these conditions were war-caused. This required the Tribunal to assess whether a reasonable hypothesis had been raised connecting the Applicant's war service with these alleged diseases, and if so, whether the Tribunal was satisfied beyond reasonable doubt that there was no sufficient ground for making such a finding.

The Tribunal accepted the Applicant's evidence regarding an electrocution incident during his service, finding him to be an honest and reliable witness despite the passage of time. Expert evidence from the Applicant's treating psychiatrist, Dr. James Fellows-Smith, supported the diagnosis of PTSD, attributing it to the electrocution incident. The Tribunal found Dr. Fellows-Smith's longitudinal perspective and the Applicant's trust in him led to a more accurate history and diagnosis compared to the Respondent's expert. The Tribunal applied the four-step process outlined in *Deledio*, concluding that the Applicant suffered from PTSD which, in turn, led to his alcohol use disorder. The Tribunal was satisfied that a reasonable hypothesis connecting the Applicant's service with these conditions had been raised and was not satisfied beyond reasonable doubt that the conditions were not war-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal is of the opinion that the Applicant was an honest and reliable witness who gave evidence to the best of his recollection, despite the passage of more than 50 years since the electrocution incident. The Tribunal accepts that the electrocution incident occurred, and that the absence of a medical record being made at the time can be plausibly explained. The occurrence of the electrocution incident was also supported by the letter from Mr Froude. The Tribunal further accepts that the electrocution incident occurred in the manner described by the Applicant, and that the Applicant avoided recounting the incident until approximately 2012 due to shame and embarrassment. Accordingly, the Tribunal is not of the view that the Applicant exaggerated the incident, and accepts the evidence of the Applicant and Dr Fellows-Smith (discussed below) as to why the Applicant did not disclose his double incontinence. With respect to the Applicant’s drinking, although the Applicant commenced drinking as a 16 year old, and his drinking increased following Cyclone Tracey, the Tribunal accepts the Applicant’s evidence (which is again supported by the evidence of Dr Fellows-Smith discussed below), that the Applicant’s drinking increased to a more serious extent after suffering PTSD due to the electrocution incident. EXPERT EVIDENCE The Tribunal heard evidence from two expert medical witnesses. The Applicant called his treating psychiatrist, Dr James Fellows-Smith, and the Respondent called Dr Gemma Edwards-Smith, who examined the Applicant on 25 May 2017 and 9 June 2017 for the purpose of preparing a medico-legal opinion for the Respondent (Exhibit R3). Dr James Fellows-Smith Dr Fellows-Smith has been practising as a psychiatrist for 30 years, and commenced treating the Applicant on 25 April 2007 (transcript, page 16). His qualifications are Bachelor of Medicine, Bachelor of Surgery (MBBS), Master of Medical Science (MMedSc), Member of the Royal College of Psychiatrists (MRCPsych), Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) and Fellow of the Australasian Chapter of Addiction Medicine, Royal Australasian College of Physicians (FAchAM). Dr Fellows-Smith has extensive experience working with veterans, including Vietnam veterans, over several decades and reported seeing veterans in his practice on a daily basis (transcript, page 21). At the Tribunal hearing Dr Fellows-Smith gave evidence that he had diagnosed the Applicant with PTSD. When asked by counsel for the Applicant to identify the cause of the Applicant’s PTSD, Dr Fellows Smith stated (transcript, page 18):I believe it was the traumatic incident that occurred on board HMAS Sydney when they were – it was two days before Christmas 1967 and he was in the switchboard room down below and was ordered to be there and then when he was asleep he rolled on his right side and his right hand went into the switchboard, so causing this contact with the electrical current, and I believe the electrical current was quite considerable. The voltage itself isn’t really the lethal problem, it’s the amount of amps that he gets from this – the switchboard and I believe the circuit was controlling the lighting on board the ship, so –

Decision

Reasons for decision

On 6 November 2016, the Applicant sought review in this Tribunal of the decision of the Veterans’ Review Board of 26 July 2016 (T1) (the Reviewable Decision). The Applicant’s Statement of Facts, Issues and Contentions states that “[t]he Applicant accepts that on the current evidence available his claim for cervical spondylosis cannot succeed” (Exhibit A1, para [38]). Consequently, the only conditions which the Tribunal must consider are posttraumatic stress disorder and alcohol use disorder. ISSUE The issues which require determination by the Tribunal are:(a)whether the Applicant suffers from PTSD, and alcohol use disorder; and (b)if so, whether these conditions are war-caused. This requires the Tribunal to assess:(i)whether a reasonable hypothesis has been raised by the Applicant connecting his war service with the diseases; and(ii)if so, whether the Tribunal is satisfied beyond a reasonable doubt that there is no sufficient ground for making that finding.JURISDICTION Section 25(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that the jurisdiction of the Tribunal is given to it by other “enactments” which grant the Tribunal jurisdiction to review certain decisions made under those enactments: (1)An enactment may provide that applications may be made to the Tribunal:(a)for review of decisions made in the exercise of powers conferred by that enactment; or(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. Section 175 of the Veterans’ Entitlement Act 1986 (Cth) (the VEA) gives the Tribunal jurisdiction to review a decision of the Veterans’ Review Board:(1)If: (a)a decision of the Commission has been reviewed by the Board upon an application made under section 135; and (b)either: (i) the Board affirms or varies the decision; or (ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies; applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board. (1AA)For the purposes of subsection (1), the decision made by the Board is taken to be: (a)if the Board affirms a decision-that decision as affirmed; or (b)if the Board varies a decision-that decision as varied; or (c)if the Board sets aside a decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies-the decision made by the Board in substitution for the decision so set aside. Consequently, the Tribunal has jurisdiction to review the Reviewable Decision of the Veterans’ Review Board dated 26 July 2016. MATERIAL BEFORE THE TRIBUNAL The application was heard in the Tribunal on 16 and 17 July 2018. The Applicant was represented by Mr Robert Graydon of Robert Graydon Legal. The Respondent was represented by Ms Sarah Oliver of Francis Burt Chambers who was instructed by the Australian Government Solicitor (AGS). The Tribunal heard evidence from the following witnesses at the hearing:(a)The Applicant;(b)Dr James Fellows-Smith, the Applicant’s treating Psychiatrist, who was called by the Applicant and gave evidence by telephone. (c)Dr Gemma Edwards-Smith, Consultant Psychiatrist, who was called by the Respondent and gave evidence in person.

Ratio Decidendi

Legal Principle Established

As indicated above, the Tribunal accepts the version of events given by the Applicant regarding the electrocution incident. This version of events was not, however accepted by Dr Edwards-Smith who expressed some doubt as to whether the electrocution incident occurred, and based her conclusions on a less traumatic version of the electrocution incident. This was likely contributed to some extent by the Applicant who only mentioned his urinary incontinence, and not his faecal incontinence to Dr Edwardes-Smith. The Tribunal is of the opinion that due to the Applicant’s relationship of trust and confidence with Dr Fellows-Smith, and due to the advantage of a longitudinal perspective, Dr Fellows-Smith had the benefit of a more accurate history and was able to make a more accurate diagnosis of the Applicant. CONSIDERATION As noted in the discussion of the Applicant’s evidence, and the expert evidence above, the Tribunal finds that the Applicant suffers from PTSD which also led to his alcohol use disorder. These findings will be expanded upon below in the discussion of step four from Deledio. The next step for the Tribunal is to apply the four step process identified by the Full Court of the Federal Court in Deledio as follows:…the course which the Tribunal is to take in a case, such as the present, (that is, 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 s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.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 ss 196B(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 s 120(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 doing so, no question of onus or proof or the application of any presumption will be involved.