Cavanagh and Repatriation Commission - [2013] AATA 876

[2013] AATA 876

Division VETERANS' APPEALS DIVISION

File Number

2013/1746

Re

Jeanette Cavanagh

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 9 December 2013

Place Brisbane
The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Operational service with Royal Australian Navy – Kind of death – Death from ischaemic heart disease – Statements of Principles concerning posttraumatic stress disorder, hypertension and ischaemic heart disease – Clinical onset – Reasonable hypotheses of relationship to service raised – Evidence of facts inconsistent with the hypotheses – Satisfied beyond reasonable doubt that death not war-caused – Defence service with Royal Australian Navy – Kind of death – Death from ischaemic heart disease – Statements of Principles concerning posttraumatic stress disorder, hypertension and ischaemic heart disease – Clinical onset – Reasonably satisfied that death not related to defence service – Decision affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 68, 69, 70, 120, 120A, 120B
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
O’Dowd v Repatriation Commission [2013] FCA 991
Re Hughes and Repatriation Commission [2013] AATA 238
Re Onorato and Repatriation Commission [2012] AATA 759
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Warren (2007) 95 ALD 606
SECONDARY MATERIALS
Statements of Principles concerning posttraumatic stress disorder No. 5 of 2008, No. 6 of 2008
Statements of Principles concerning hypertension No. 35 of 2003, No. 3 of 2004, No. 11 of 2008, No. 63 of 2013, No. 36 of 2003, No. 4 of 2004, No. 12 of 2008 and No. 64 of 2013
Statements of Principles concerning ischaemic heart disease No. 89 of 2007, No. 43 of 2009, No. 96 of 2010, No. 125 of 2011, No. 90 of 2007, No. 44 of 2009, No. 97 of 2010, No. 126 of 2011
The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000
REASONS FOR DECISION
Mr R G Kenny, Senior Member
9 December 2013
BACKGROUND

Monte Cavanagh (“the veteran”) died on 20 September 2011 at the age of 61 years. Jeanette Cavanagh (“the applicant”) is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 23 November 2011, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act or defence-caused in accordance with s 70 of the Act. Her claim was rejected by the Repatriation Commission on 12 April 2012 and by the Veterans’ Review Board on

5 March 2013.
SERVICE
The veteran…

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 Cavanagh and Repatriation Commission

Details

AGLC: Cavanagh and Repatriation Commission [2013] AATA 876
Case: [2013] AATA 876
Decision Date: 9 December 2013

CaseChat Overview and Summary

The case of Cavanagh and Repatriation Commission was heard by the Administrative Appeals Tribunal (AAT) in Australia. The dispute centred around the death of a veteran from ischaemic heart disease and whether this death was related to his service with the Royal Australian Navy. The AAT was required to determine if the veteran’s death arose out of, or was attributable to, his eligible war service or defence service. The central legal issues involved the application of the relevant Statements of Principles concerning posttraumatic stress disorder, hypertension, and ischaemic heart disease, and the determination of the clinical onset of these conditions in relation to the veteran’s service.

The AAT considered two hypotheses proposed by the veteran's representative regarding the causation of the veteran's ischaemic heart disease and death: first, that the suicide of a fellow sailor, known as the Linnane event, caused or worsened posttraumatic stress disorder, which in turn caused ischaemic heart disease and death; second, that service-related alcohol consumption, smoking, and hypertension each contributed to ischaemic heart disease and ultimately to death. The Tribunal found that while these hypotheses were reasonable, there were facts inconsistent with them, leading the Tribunal to be satisfied beyond reasonable doubt that the veteran's ischaemic heart disease and death were not attributable to his operational service. Consequently, the decision under review was affirmed.

In reaching its conclusion, the AAT thoroughly examined the clinical onset of posttraumatic stress disorder, hypertension, and ischaemic heart disease, applying the relevant legal criteria and the evidence presented. The Tribunal found that the veteran’s posttraumatic stress disorder was not war-caused, and therefore, neither the ischaemic heart disease nor the death could be attributed to his service. The Tribunal relied on medical evidence and the established Statements of Principles to determine that the veteran’s conditions did not meet the necessary criteria for a causal link to his service. The final orders of the Tribunal affirmed the decision that the veteran’s death was not attributable to his defence 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 issue for the Tribunal is whether the veteran’s death arose out of, or was attributable to, any eligible war service or defence service rendered by him. EVIDENCEThe two events The veteran completed an 11 page document which he entitled “Monte Cavanaughs Naval Career”.[7] It is of assistance in understanding aspects of his life and RAN service. Therein, he detailed many aspects of his service including his early training years and his various postings, some of long duration such as a tour for nine months in 1975.He described purchasing a packet of cigarettes immediately on joining the RAN and being involved in “over the fence grog runs for a dozen cans of beer for twelve blokes” while in training. He recalled an “open beer issue” associated with the work he was doing at age 17 and described as “fun” the driving of an RAN truck through Sydney in peak hour traffic after many hours in a hotel, noting that there were “no RBTs”[8] at that time. He described an injury when he was “cut to pieces” after walking into a glass window in Brisbane where he was involved in recruitment. He referred to the dangers of working with steam boilers, noting a “couple of incidents that play on the mind occasionally” and a “steam line blow out, caused by old age, causing injuries to stokers that were on watch at the time”. He also mentioned the suicide of a fellow sailor which “was not a pleasant time” in his life. No specific reference is made in that statement to Mr Palmer or Mr Linnane.[7] Exhibit 7.[8] The term is understood to mean “random breath testing”. The most detailed account of the Linnane event was recorded by psychiatrist, Dr Bruce Lawford, who saw the veteran on one occasion which resulted in a report dated 29 March 2011.[9] He wrote that the veteran had befriended a young sailor known as “Boots” Linnane who served on the Sydney from 1973.[10] In 1975 or 1976, Mr Linnane was in charge of a group of young sailors, all of whom indulged in a drinking session after lunch on a particular day. Apparently, on a dare from Mr Linnane, one of the sailors in a state of some inebriation, drove an RAN vehicle into a dam. On learning of this, the veteran was forced to discipline Mr Linnane and advised him that the matter would be reported to superiors. After returning to his home which was on an RAN base, Mr Linnane shot himself in the head and died. On learning of this, the veteran felt badly about the events of the afternoon. Some weeks after Mr Linnane’s funeral and after the cleaning of the scene in the house where Mr Linnane died, the veteran was in a group which was to recover the furniture in the house. This was to be sold and proceeds of sale were to be given to Mr Linnane’s widow. In carrying out that task, the veteran came into contact with some of Mr Linnane’s human tissue which was under a lounge cushion. Dr Lawford recorded that the veteran had been horrified at that time.[9] Exhibit 1, T-Document 4, pp. 83-89.[10] In his evidence he accepted that the reference could be to 1972. An inconsistency in the report is Dr Lawford’s reference to the veteran meeting Mr Linnane in 1975.

Decision

Reasons for decision

Although two reasonable hypotheses have been raised on the material before me, there are facts inconsistent with the hypotheses which leave me satisfied beyond reasonable doubt that the veteran’s posttraumatic stress disorder was not war-caused. As that condition was material to each of two raised hypotheses, it follows that I am also satisfied beyond reasonable doubt that the veteran’s ischaemic heart disease and consequential death are not attributable to his operational service.[53][53] In so determining, I have noted the authorities cited by Mr Richards. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

A Medical/Dental History questionnaire was completed by the veteran on 29 March 1981. Therein, he referred to “high blood pressure” and an entry from a dental officer reads: “possible high Bl pressure – no current treatment”.[24] Also in evidence were the veteran’s discharge medical documents completed in late 1985. His blood pressure is recorded as 135/80. His cardio-vascular system is noted to be “normal” but an entry of “NE” in relation to psychiatric assessment suggests that this was not undertaken.[25] A radiology report declared that there was “No active cardiac or pulmonary lesion seen”.[26]CONSIDERATION[24] Exhibit 8.[25] Exhibit 1, T-Document 4, pp. 2-3.[26] Exhibit 1, T-Document 4, p. 4.Clinical Onset Each of the identified factors in the relevant Statements of Principles listed below requires consideration of the concept of clinical onset. In Kaluza v Repatriation Commission (“Kaluza”),[27] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission,[28] in the following way: [92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either: ·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or ·when a finding is made on investigation which is indicative to a doctor that the disease is present.[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment. [27] [2010] FCA 1244.[28] (2002) 125 FCR 331. Consideration will be needed in relation to the clinical onset of posttraumatic stress disorder, of hypertension and of ischaemic heart disease as each relates to Mr Richard’s hypotheses, in respect of war service. For the contentions in respect of defence service, the clinical onset will be determined on the basis of reasonable satisfaction. Defence-caused death As I understood Mr Richards’ submissions, the following contentions were made by him for attributing the veteran’s death to defence service:·First contention: the Linnane event caused or worsened posttraumatic stress disorder; which caused ischaemic heart disease; which caused death;·Second contention: service-related alcohol consumption caused hypertension; which caused ischaemic heart disease; which caused death;·Third contention: service-related smoking caused ischaemic heart disease; which caused death. The determination of a relationship between the veteran’s death and defence service requires a consideration of the relevant Statements of Principles for posttraumatic stress disorder, hypertension and ischaemic heart disease. These, with the relevant factors and associated definitions read: Statement of Principles concerning posttraumatic stress disorder No. 6 of 2008:Factor 6(a): experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; Factor 6(e): experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; "a category 1A stressor" means one or more of the following severe traumatic events: (a) experiencing a life-threatening event; (b) being subject to a serious physical attack or assault including rape and sexual molestation; or (c) being threatened with a weapon, being held captive, being kidnapped, or being tortured; Factor 6(b): experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;Factor 6(f): experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder; "a category 1B stressor" means one of the following severe traumatic events: (a) being an eye witness to a person being killed or critically injured; (b) viewing corpses or critically injured casualties as an eyewitness; (c) being an eyewitness to atrocities inflicted on another person or persons; (d) killing or maiming a person; or (e) being an eyewitness to or participating in, the clearance of critically injured casualties; "an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;Statement of Principles concerning hypertension No. 36 of 2003,[29] as amended by No 4 of 2004 and No. 12 of 2008; and No. 64 of 2013:[29] As amended by No. 4 of 2004 in a manner unrelated to this matter.Factor 5(b)[No. 12 of 2008] consuming an average of at least 500 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension.[30][30] As it read at the time of the applicant’s claim.Factor 5(b) [No. 64 of 2013] consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension.[31] alcohol is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;[32][31] As it read since 26 August 2013.[32] As it read at the time of and since the applicant’s claim, with the only difference being the use of numeral ten in the earlier amendment.Statement of Principles concerning ischaemic heart disease No. 90 of 2007 as amended by No. 44 of 2009:[33][33] As amended by No. 97 of 2010 and No. 126 of 2011 in a manner unrelated to this matter.Factor 6(a) [No 90 of 2007] having hypertension before the clinical onset of ischaemic heart disease[34][34] As it read at the time of and since the applicant’s claim.Factor 6(h) [No 90 of 2007] where smoking has not ceased prior to the clinical onset of ischaemic heart disease: (i) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or (ii) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or "cigarettes per day or the equivalent thereof in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco;"pack year of cigarettes or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination; Factor (ff)(iv) [No 44 of 2009] having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical onset of ischaemic heart diseasea clinically significant anxiety spectrum disorder as specified" means one of the following disorders:…(e) posttraumatic stress disorder; …that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitionerClinical onset for defence service

Division	VETERANS' APPEALS DIVISION
File Number	2013/1746
Re	Jeanette Cavanagh
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	9 December 2013
Place	Brisbane