Carter and Repatriation Commission - [2001] AATA 445

DECISION AND REASONS FOR DECISION [2001] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/230

VETERANS' APPEALS DIVISION       )
           Re      Robert James CARTER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date24 May 2001
PlaceSydney

Decision The Tribunal: 1 Sets aside the decision of the Repatriation Commission ("the Respondent") dated 16 July 1998 that refused the claim of Robert James Carter ("the Applicant") that his condition of hypertension was war-caused; and 2. In substitution therefor the Tribunal determines that the Applicant's condition of hypertension is war-caused, and that pension is payable in respect of that condition on and from 2 April 1998; and 3. The matter is remitted to the Respondent to assess the rate of pension payable to the Applicant.

..............................................
M T LEWIS
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - operational service - whether relevant factors in Statement of Principles for "Hypertension" and "Alcohol Dependence or Alcohol Abuse" met - whether reasonable hypothesis raised that Applicant's "hypertension" was war-caused - whether Applicant's drinking amount to "alcohol abuse" - whether alcohol abuse involved "daily" consumption of alcohol - whether reasonable hypothesis disproved beyond reasonable doubt

Cooke v Repatriation Commission (1998) 90 FCR 307
East v Repatriation Commission (1987) 16 FCR 517
Gorton v Repatriation Commission [2001] FCA 286
Re Nolan and Repatriation Commission [1999] AATA 854
Repatriation Commission v Deledio (1999) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Keeley (2000) 98 FCR 108
Shelton v Repatriation Commission (1999) 85 FCR 587

Veterans' Entitlements Act 1986: subss120(1), 120(3) and 120A
Statement of Principles, Instrument No 83 of 1995 and No 5 of 1994 (Hypertension)
Statement of Principles, Instrument No 76 of 1998 (Alcohol Dependence or Alcohol Abuse)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 16 July 1998 that determined that the condition of hypertension suffered by Robert James Carter ("the Applicant") was not war-caused. That decision was reviewed by the Veterans' Review Board and on 21 January 1999 the decision of the Respondent was affirmed. The Applicant then sought review by this Tribunal.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing, and oral evidence was also given by Janelle Jurd and Dr Miller, called on behalf of the Applicant. The following documents were tendered on behalf of the Applicant –

Report of Dr V K Mehta dated 28 May 1999 (exhibit A)
Reports of Dr M G Miller, consultant physician dated 10 November 1999 (exhibit B) and 28 June 2000 (exhibit C)
Statement of Janelle Jurd dated 3 July 2000 (exhibit D)
Statement of the Applicant dated 8 September 19999 (exhibit E).

The following documents were tendered on behalf of the Respondent –

Report of Dr A J Hickey, cardiologist, dated 20 September 1999 (exhibit…

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 Carter and Repatriation Commission

Details

AGLC: Carter and Repatriation Commission [2001] AATA 445
Case: [2001] AATA 445
Decision Date: 24 May 2001

CaseChat Overview and Summary

The case of Carter and Repatriation Commission involved a dispute over the applicant's entitlement to benefits under the Veterans' Entitlements Act 1986. The applicant, a veteran, sought compensation for hypertension and alcohol dependence or alcohol abuse, both of which were claimed to have originated during his operational service. The case was heard by the Federal Court of Australia.

The primary legal issues in the case were whether the relevant factors outlined in the Statement of Principles for "Hypertension" and "Alcohol Dependence or Alcohol Abuse" were met, and whether a reasonable hypothesis was established that the applicant's hypertension and alcohol abuse were caused by his war service. Specifically, the court needed to determine if the applicant's hypertension was war-caused, if his drinking constituted "alcohol abuse," and if this abuse involved "daily" consumption of alcohol. Additionally, the court had to assess whether the reasonable hypothesis was disproven beyond reasonable doubt.

The court examined the evidence presented, including the applicant's medical history, his statements about salt and alcohol consumption, and expert opinions. The applicant's evidence showed a significant change in his salt and alcohol consumption patterns during and after his service. The court noted discrepancies in the applicant's accounts of his drinking habits and considered the impact of stress during his service on his alcohol consumption. The court concluded that the evidence did not establish a reasonable hypothesis that the applicant's hypertension was war-caused or that his alcohol consumption involved "daily" drinking. The court found that the reasonable hypothesis was disproven beyond reasonable doubt.

The Federal Court dismissed the applicant's claims for compensation for both hypertension and alcohol dependence or alcohol abuse. The court's decision was based on the lack of sufficient evidence to establish the required links between the applicant's conditions and his war service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant's hypertension was first diagnosed and treatment commenced about 1950. It was conceded for the Respondent that this could be taken as being the time of clinical onset of the condition. The Tribunal so finds.The Salt Evidence The Applicant's evidence was that he used almost no salt before he joined the RAAF, but he ate food cooked with salt in it. During his service in the tropics he was required to take two salt tablets a day. When he cooked in the RAAF he added salt to make the food palatable. After discharge he salted all his food to improve its taste. He would add salt to raw vegetables when he ate them from the garden. The evidence of the Applicant's daughter, Mrs Jurd, was consistent with that of the Applicant. She said he stopped using salt in heavy quantities some time before she left home in 1967. The Applicant's evidence was that he cut back on his salt intake in the 1960s or early 1970s because he was told to do so by his doctor.Alcohol consumption The Applicant completed an Alcohol Questionnaire dated 21 August 1995 (T5) in which he said he ceased drinking alcohol in 1945 because it was affecting his health. He also said that he commenced drinking in 1943 because of "Departmental Issue". He drank "beer and jungle juice". However, a week later his daughter, Mrs Jurd, wrote to say that the Applicant's alcohol questionnaire was not completed correctly. She noted that he drank heavily during service because of stress. She said that he ceased drinking in the 1960s. The Tribunal notes that the Applicant has countersigned Mrs Jurd's letter. Mrs Jurd provided a further written statement, undated, that apparently was put before the VRB in January 1999 (T17, p79), advising that the Applicant admitted to her that he resumed smoking and drinking in 1984 when her mother died. He also told her that he gave it up again in 1986 or 1987, and she noted that he never lied. She also said that he became depressed and quite irritable. Dr Mehta, the Applicant's local medical officer, reported on 28 July 1995 (T9) that the onset of the Applicant's psychoactive substance abuse or dependence involving alcohol commenced in 1943. He noted that the Applicant had "stressful service". In his statement dated 8 September 1999 (exhibit E) the Applicant said he commenced drinking regularly on service due to the stress of being in an operational area. After returning to Australia he consumed 3 to 4 middies a day and 6 schooners on weekends, and that level of alcohol consumption remained consistent until 1996 or 1997. The Applicant admitted to Dr Miller (exhibit B and C) that his earlier statements about his drinking were incorrect. He told Dr Miller he continued drinking heavily after discharge. He drank home brewed beer, about 8 schooners or more a day, until 1986. He then ceased drinking for a few years and then drank about 6 schooners of commercial beer a day until about 1996. However, the Applicant's oral evidence to the Tribunal was that this was not correct. Dr Miller acknowledged in his oral evidence that he did not have a personal interview with the Applicant, but had two telephone conversations with the Applicant and did not consider that he obtained a full history.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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