Burland and Repatriation Commission - [2002] AATA 918

DECISION AND REASONS FOR DECISION [2002] AATA 918

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/408
VETERANS'     APPEALS       DIVISION
  Re:         ANTHONY WILLIAM BURLAND
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             11 October 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - post traumatic stress disorder - shots fired - fears for safety - radio conversations - perceived danger to other persons - whether applicant experienced a stressor
Veterans' Entitlements Act 1986 s9, 120(1), 120(3), 120(4), 120A(3)
Bull v Repatriation Commission (2002) 66 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Meehan v Repatriation Commission (2001) 64 ALD 366
O'Neil v Repatriation Commission (2001) 34 AAR 290
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

11 October 2002 G.D. Friedman, Member

This is an application by Anthony William Burland (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 14 March 2001. The VRB varied the decision of a delegate of the Repatriation Commission (the respondent) dated 8 July 1998 in relation to depressive disorder by amending the description of that condition to post traumatic stress disorder (PTSD). The VRB affirmed the decision that PTSD with secondary alcohol abuse and depression, diabetes mellitus, psoriasis and hypertension were not war-caused.
At the hearing of this matter on 1 October 2002 Mr P. Liefman, solicitor, represented the applicant and Mr K. Rudge, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with four exhibits (Exhibits A1-A4) lodged by the applicant and four exhibits (Exhibits R1-R4) lodged by the respondent.
BACKGROUND
The applicant was born in Melbourne on 1 March 1949. At the age of 15 he commenced an apprenticeship with the Victorian Government Printing Office. He was selected for National Service and joined the Australian Army (the army) at the conclusion of his apprenticeship on 8 July 1970. After basic training at Puckapunyal, he was sent to Queensland where he was trained as a driver with the Royal Australian Army Service Corps. From 16 June 1971 to 8 December 1971 the applicant served in South Vietnam and this period was considered to be operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act). He was discharged on 7 January 1972.
After leaving the army the applicant returned to the printing industry, and in 1978 he undertook a catering course. He took up a position as a cook at a nursing home, then after six months he moved to Phillip Island to care for an ill ex-serviceman. He worked as a cook at a local hotel until his dismissal in 1994.
On 23 March 1998 the applicant made application to the Department of Veterans' Affairs for disability pension for a number of medical conditions. In the course of medical assessment…

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 Burland and Repatriation Commission

Details

AGLC: Burland and Repatriation Commission [2002] AATA 918
Case: [2002] AATA 918
Decision Date: 11 October 2002

CaseChat Overview and Summary

The case of Burland and Repatriation Commission involved the applicant, who served in the Australian Army in South Vietnam from 1971 to 1972, seeking a disability pension for various medical conditions he claimed were war-caused. The Repatriation Commission had previously refused his application on the grounds that the claimed conditions were not war-caused. The dispute was reviewed by the Administrative Appeals Tribunal. The primary legal issue before the Tribunal was whether the evidence presented by the applicant sufficiently supported a hypothesis connecting his medical conditions to his war service. The Tribunal applied the four-step process outlined by the Federal Court in Repatriation Commission v Deledio, focusing on whether the evidence raised a reasonable hypothesis of a connection between the applicant’s conditions and his service.

The Tribunal examined the applicant’s recollection of three incidents during his service in Vietnam: the shots incident, the helicopter incident, and the artillery incident. The applicant claimed these incidents caused him significant fear and distress, contributing to his later medical conditions. The Tribunal also considered the submissions from the applicant's advocate, who argued that the incidents were plausible and fit within the criteria outlined in relevant Statements of Principles (SoPs). The Tribunal found that while the applicant's recollections were clear and plausible, they did not provide a reasonable hypothesis connecting the claimed conditions to his war service. The Tribunal was satisfied, beyond reasonable doubt, that the evidence did not support a connection between the applicant's medical conditions and his service in Vietnam.

As a result, the Tribunal affirmed the original decision of the Repatriation Commission, denying the applicant's claim for a disability pension. The Tribunal concluded that the applicant's conditions were not war-caused, and thus, he was not entitled to the pension. The final orders of the Tribunal upheld the decision to refuse the pension application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with four exhibits (Exhibits A1-A4) lodged by the applicant and four exhibits (Exhibits R1-R4) lodged by the respondent. BACKGROUND The applicant was born in Melbourne on 1 March 1949. At the age of 15 he commenced an apprenticeship with the Victorian Government Printing Office. He was selected for National Service and joined the Australian Army (the army) at the conclusion of his apprenticeship on 8 July 1970. After basic training at Puckapunyal, he was sent to Queensland where he was trained as a driver with the Royal Australian Army Service Corps. From 16 June 1971 to 8 December 1971 the applicant served in South Vietnam and this period was considered to be operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act). He was discharged on 7 January 1972. After leaving the army the applicant returned to the printing industry, and in 1978 he undertook a catering course. He took up a position as a cook at a nursing home, then after six months he moved to Phillip Island to care for an ill ex-serviceman. He worked as a cook at a local hotel until his dismissal in 1994. On 23 March 1998 the applicant made application to the Department of Veterans' Affairs for disability pension for a number of medical conditions. In the course of medical assessment he stated that he was suffering from anxiety, depression, insomnia and back pain, as well as hypertension, obesity and diabetes. He has been diagnosed as suffering from PTSD with secondary phenomena of depressive symptomology and excessive alcohol intake. On 8 July 1998 the respondent refused the application on the grounds that the claimed conditions were not war-caused. On 17 April 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB.EVIDENCE The applicant told the Tribunal that in Vietnam he served as a driver at the Australian Task Force headquarters at Nui Dat and his duties included driving officers, acting as a batman, and general duties in the mess and around the base. He said that two or three times each week he would do the laundry run, which consisted of him driving a Land Rover to a civilian laundry at Baria, a provincial capital about seven kilometres away. He explained that on one occasion (the shots incident), while driving to Baria with another soldier, about two months after his arrival, he heard two shots from a nearby rice field and observed dust rising from the point of impact on the side of the road. He said that he observed a number of young people in the field about 100 metres away and he quickly accelerated. The applicant stated that, although he was fearful for his safety, there were no untoward consequences. The applicant stated on his return to the base he informed a New Zealand sergeant about the incident but the sergeant did not seem interested in taking the matter further. He also said he told about five other soldiers later that day.

Evidence

Evidence Before The Court

On 23 March 1998 the applicant made application to the Department of Veterans' Affairs for disability pension for a number of medical conditions. In the course of medical assessment he stated that he was suffering from anxiety, depression, insomnia and back pain, as well as hypertension, obesity and diabetes. He has been diagnosed as suffering from PTSD with secondary phenomena of depressive symptomology and excessive alcohol intake. On 8 July 1998 the respondent refused the application on the grounds that the claimed conditions were not war-caused. On 17 April 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB.EVIDENCE The applicant told the Tribunal that in Vietnam he served as a driver at the Australian Task Force headquarters at Nui Dat and his duties included driving officers, acting as a batman, and general duties in the mess and around the base. He said that two or three times each week he would do the laundry run, which consisted of him driving a Land Rover to a civilian laundry at Baria, a provincial capital about seven kilometres away. He explained that on one occasion (the shots incident), while driving to Baria with another soldier, about two months after his arrival, he heard two shots from a nearby rice field and observed dust rising from the point of impact on the side of the road. He said that he observed a number of young people in the field about 100 metres away and he quickly accelerated. The applicant stated that, although he was fearful for his safety, there were no untoward consequences. The applicant stated on his return to the base he informed a New Zealand sergeant about the incident but the sergeant did not seem interested in taking the matter further. He also said he told about five other soldiers later that day. On another occasion (the helicopter incident) the applicant said he was on switchboard duty at the command post at night when he overheard the voice of an American helicopter pilot on the radio saying: We've been hit. We're going down. Then the radio went dead. The applicant said that he felt terror and helplessness as he assumed that the occupants of the helicopter had been killed. He said that he had no knowledge of the details or the consequences of the incident, and no action was taken by anyone at the command post at the time. The applicant stated that on a third occasion (the artillery incident) he was again assisting in the command post when he heard an American voice on the radio, from what he assumed to be an artillery unit forward observer, saying something about the firing of an artillery piece. The applicant said the communications suddenly ceased and he feared the observer or other personnel had been killed or injured. He explained that this caused him distress and he became fearful for his life. The Tribunal was told that the applicant's intake of alcohol escalated when he joined the army, and after returning to Australia he began to drink more heavily, a habit which he has been unable to break. He said that he has nightmares, back pain and does not relate well to people. He has lived a solitary life since his army service, and stated that he does voluntary work in his local community and visits the RSL Club several times each week.

Decision

Reasons for decision

In applying s120(3) of the Act the Tribunal has considered all the material available to it and, for the reasons outlined above, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that PTSD is a war-caused condition for the purposes of s120(1). Therefore, the Tribunal finds that this and the remaining conditions were not war-caused. DECISION The Tribunal affirms the decision under review.I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision of: G.D. Friedman, Member(sgd) Catherine Thomas ClerkDate of hearing: 1 October 2002 Date of decision: 11 October 2002Advocate for applicant: Mr P. LiefmanSolicitor for applicant: Peter J. LiefmanAdvocate for respondent: Mr K. RudgeSolicitor for respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

In oral evidence Lieutenant-Colonel Conant agreed that in Vietnam the regulations and standing orders were not necessarily followed in their entirety at all times.CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact. Mr Liefman submitted that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran, and that the hypothesis fits within the template and is reasonable. He said that the recollection of the applicant in relation to the three incidents was clear and plausible, and that as a consequence, the applicant had feared for his life. Mr Liefman noted that Lieutenant-Colonel Conant had acknowledged that the failure by the New Zealand sergeant to report the shots incident was not remarkable in the circumstances. In relation to the helicopter incident and the artillery incident Mr Liefman stated that, although atmospheric quirks affecting radio transmissions were possible, air to ground communications were not uncommon. He said that in a small command post there was a strong possibility that a switchboard operator would occasionally overhear radio communications from American ground forces and pilots. Mr Liefman referred the Tribunal to O'Neil v Repatriation Commission (2001) 34 AAR 290 in which North J stated in relation to the SoP concerning generalised anxiety disorder at page 292:… It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs.