Caldow and Repatriation Commission (Veterans' entitlements) - [2021] AATA 932

Caldow and Repatriation Commission (Veterans' entitlements) [2021] AATA 932 (20 April 2021)
Division:VETERANS’ APPEALS DIVISION
File Number: 2019/5168
Re:Peter Caldow
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:20 April 2021
Place:Perth

The decision of the Veterans’ Review Board dated 25 July 2019 which affirmed a determination of the Respondent dated 7 May 2018 rejecting the Applicant’s claimed posttraumatic stress disorder and alcohol use disorder on the basis that they were not defence-caused for the purposes of s 70(5) of the Veterans’ Entitlements Act 1986 (Cth) is affirmed.
.....[SGD]...................................................................
Deputy President Boyle
CATCHWORDS
VETERANS’ ENTITLEMENTS – defence service – Applicant posted to Butterworth, Malaysia – Applicant had been diagnosed by two psychiatrists with posttraumatic stress disorder and alcohol use disorder – whether psychological injuries were defence-caused – whether Applicant would have suffered injury ‘but for’ defence service – inconsistencies in evidence before the Tribunal – Tribunal not reasonably satisfied that the category 1A stressor occurred – reviewable decision affirmed.
LEGISLATION
Defence Act 1903 (Cth) – s 17
Veterans’ Entitlements Act 1986 (Cth) – ss 5C, 5D, 68, 70, 70(5), 70(5)(c), 70(7), 120(1), 120(2), 120(4), 120A, 120B, 196B(3), 196B(14), pts II, IV
CASES
Comcare v Mather and Mitchell (1995) 56 FCR 456
Comcare v PVYW (2013) 250 CLR 246
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Money (2009) 173 FCR 410
Repatriation Commission v Smith (1987) 15 FCR 327
Roncevich v Repatriation Commission [2001] FCA 1320
Roncevich v Repatriation Commission [2002] FCA 1458
Roncevich v Repatriation Commission (2005) 222 CLR 115
Simpson and Repatriation Commission [2018] AATA 343
Smith and Repatriation Commission [2015] AATA 786
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017) (24 September 2018) – paras 7, 7(2), 9, 9(1), 9(2), 9(3), sch 1
Repatriation Medical Authority, Statement of Principles concerning posttraumatic stress disorder (No. 83 of 2014) (24 September 2018) – paras 3, 3(b), 3(b)A(i), 3(b)A(ii), 5, 6, 9
REASONS FOR DECISION
Deputy President Boyle
20 April 2021
THE APPLICATION

The Applicant seeks review of a decision of the Veterans’ Review Board (VRB) dated 25 July 2019 which affirmed a determination of the Respondent dated 7 May 2018 rejecting the Applicant’s claimed posttraumatic stress disorder (PTSD) and alcohol use disorder (AUD) on the basis that they were not defence-caused for the purposes of s 70(5) of the Veterans’ Entitlements Act 1986 (Cth) (VEA).
BACKGROUND
The Applicant was born in January 1959. He died in January 2021.
The Applicant enlisted in the Australian Army on 24 January 1977 and was discharged on 23 January 1980.
The Applicant was posted to Butterworth, Malaysia from 31 August 1978 to 6 December 1978.
The Applicant claimed that while posted in Malaysia, he experienced two incidents. These were:
(a)witnessing the death of LCPL Mills when he was struck by a motor vehicle (the car incident).…

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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Details

Case: [2021] AATA 932
Decision Date: 20 April 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant concerning his claims for post-traumatic stress disorder (PTSD) and alcohol use disorder (AUD), which he asserted were defence-caused. The Repatriation Commission had rejected these claims, and the Tribunal was tasked with reviewing this decision.

The central legal issue before the AAT was whether the applicant's psychological injuries were defence-caused, specifically whether he would have suffered these injuries "but for" his defence service. This required the Tribunal to assess the evidence presented, particularly concerning a Category 1A stressor, and determine if it was reasonably satisfied that such an event occurred during his operational deployment in Butterworth, Malaysia. The Tribunal also had to consider the legal standard of "reasonable satisfaction" as interpreted in relevant case law, and whether any medical opinions provided a sufficiently strong connection between the alleged stressors and the claimed conditions.

The Tribunal applied the standard of reasonable satisfaction, as outlined in *Repatriation Commission v Smith*, requiring it to be persuaded on the civil standard and to distinguish between probabilities and mere possibilities. It also considered the principles from *Repatriation Commission v Money* regarding the identification of the factual basis for a connection between service and injury, and the requirements from *Repatriation Commission v Bey* that medical opinions must "point to" a hypothesis connecting a condition with defence service, rather than merely suggesting a possibility. The Tribunal found inconsistencies in the evidence and was not reasonably satisfied that the Category 1A stressor occurred.

Consequently, the Tribunal affirmed the decision of the Veterans Review Board, which had upheld the Repatriation Commission's determination that the applicant's claimed PTSD and AUD were not defence-caused for the purposes of the *Veterans' Entitlements Act 1986* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the Applicant’s claims for PTSD and AUD must fail.DECISION The decision of the VRB dated 25 July 2019 which affirmed a determination of the Respondent dated 7 May 2018 rejecting the Applicant’s claimed PTSD and AUD on the basis that they were not defence-caused for the purposes of s 70(5) of the VEA is affirmed.

Ratio Decidendi

Legal Principle Established

The Applicant did not seek to adduce further evidence on the new argument, but did address it in his reply to the Respondent’s closing submissions as follows:(a)At the time of the incidents the Applicant was on an operational deployment in Malaysia.(b)It is incorrect to put forward the idea that incidents occurred in a normal exercise or work environment (presumably for a deployment in Butterworth) given the restrictions on travel and the need to sign in and sign out when leaving the base.(c)The Applicant’s “travel to and from work” was when he was deployed from home to the base and then when he returned from Malaysia to home (presumably in Australia).(d)The Applicant thought that he was provided coverage under the VEA.(e)The incidents would not have occurred “but for his military service”. CONSIDERATION The standard of “reasonable satisfaction” under s 120(4) of the VEA was discussed in Repatriation Commission v Smith[79] wherein Beaumont J said that a decision-maker must ask:... itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 4 AAR 344; Re Easton and Repatriation Commission (1987) 6 AAR 558; Re Repatriation Commission and Falkner (1987) 12 ALD 87.[80][79] (1987) 15 FCR 327.[80] Repatriation Commission v Smith (1987) 15 FCR 327 at 335. Section 120(4) of the VEA must be read with s 120B of the VEA, which applies to the Applicant’s claims as they are claims made under Part IV relating to defence service other than peacekeeping service, hazardous service or British nuclear test defence service. As noted at [24] above, there are two relevant SOPs in the present case, SOP 49 relating to AUD and SOP 83 relating to PTSD. Relevantly, in Repatriation Commission v Money,[81] Dowsett J, of the Federal Court observed, at [87], that:The logical starting point is identification of the connection. It is to be found in the material before the Tribunal, not in the statement of principles. However, in practice, it may be convenient to start with the statement of principles simply because it may help the Commission to identify relevant aspects of the material which it must consider. Nonetheless, the connection must have a factual basis demonstrated in such material. …[81] (2009) 173 FCR 410; [2009] FCAFC 11. In Repatriation Commission v Bey[82] (Bey), the majority of the Full Court of the Federal Court (Northrop, R D Nicholson, Sundberg, Marshall and Merkel JJ) held that it is not sufficient for a medical practitioner to suggest that the cause of a condition was “a possibility”. The opinion expressed by the practitioner must have “pointed to” the hypothesis advanced before it could raise a reasonable hypothesis connecting a condition with defence service. Their Honours later relevantly concluded that:The primary judge erred in law in holding that the mere possibility of a connection between war service and the [veteran’s] disease constitutes a reasonable hypothesis. ...[83][82] (1997) 79 FCR 364; [1997] FCA 1347 (Bey).[83] Bey at 375.