Clark and Repatriation Commission

Case [2002] AATA 1165

DECISION AND REASONS FOR DECISION [2002] AATA 1165

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1503

VETERANS' APPEALS  DIVISION       )          
           Re      PETER ROSS CLARK     
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Ms G Ettinger, Senior Member Dr P Lynch, Member Mr S Webb, Member

Date14 November 2002

PlaceSydney

DECISION The Tribunal determines that the decision under review pertaining to the Applicant, Mr Peter Ross Clark, is varied as follows: (1) By agreement of the parties, the Applicant's conditions of vitreous degeneration left eye and misaligned foveal receptors are war-caused disabilities within the terms of section 9 of the Veterans' Entitlements Act 1986, with the date of effect being 19 July 2000. (2) By agreement of the parties the diagnosis of post traumatic stress disorder with alcohol dependence is amended to gun phobia and alcohol dependence. (3) The Tribunal sets aside the decision of the Repatriation Commission dated 16 February 2001 as varied and affirmed by the Veterans' Review Board dated 13 August 2001 which found that the Applicant's conditions of gun phobia and alcohol dependence were not war-caused disabilities pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that Mr Clark's conditions of gun phobia and alcohol dependence were war-caused within the terms of section 9 of the Veterans Entitlements Act 1986 with date of effect being 22 May 2000.  (4)      The Tribunal notes that the Applicant did not pursue the claim for his condition of acquired cataracts to both eyes, and the Tribunal affirms the decision of the Repatriation Commission in that regard. (5) The matter is remitted to the Repatriation Commission for assessment of the correct rate of the Applicant's disability pension.       

.............................................
  Ms G Ettinger,
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Disability Pension - Operational service – Reasonable hypothesis – Specific Phobia - Statement of Principles - Alcohol – Diagnosis -Decision varied

LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 119, 120, 120A
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998

AUTHORITIES 
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Dell and Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Law (1981) 147 CLR 635
Kattenberg v Repatriation Commission (2002) 34 AAR 562
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Connors v Repatriation Commission (2000) 59 ALD 61
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

14 November 2002 Ms G Ettinger, Senior Member  Dr P Lynch, Member  Mr S Webb, Member   

  1. The application before the Administrative Appeals Tribunal ("the Tribunal") was that of Mr Peter Ross Clark ("the Applicant"), for review of a decision of the Veterans' Review Board ("the Board") (T14) made on 13 August 2001 which varied the decision of the Repatriation…

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Clark and Repatriation Commission [2002] AATA 1165
Case
[2002] AATA 1165
Decision Date

CaseChat Overview and Summary

Mr Peter Ross Clark sought a review of a decision by the Repatriation Commission that his conditions of gun phobia and alcohol dependence were not war-caused disabilities within the meaning of the Veterans' Entitlements Act 1986. The dispute was heard and determined by the Administrative Appeals Tribunal. The central issue before the Tribunal was whether Mr Clark's gun phobia and alcohol dependence were caused by his operational service in the Navy, and thus eligible for war-related disability entitlements. The Tribunal applied the relevant legal tests concerning the causation of veterans' disabilities, as established in previous High Court decisions. It considered the evidence presented by Mr Clark and the Respondent, including his personal history, experiences during service, and medical assessments.

The Tribunal found that Mr Clark's gun phobia was directly linked to a traumatic incident during his service when a faulty gun on HMAS Quiberon fired unexpectedly, causing significant damage and fear. This incident was sufficient to establish a reasonable hypothesis that the phobia was war-caused. Additionally, the Tribunal concluded that Mr Clark's alcohol dependence, while not directly linked to the phobia, was a condition that arose from the stress and trauma of his service, making it also war-caused. The Tribunal was not satisfied that there were no sufficient grounds to determine that these conditions were not war-caused, as required by sections 120(3) and 120(1) of the Act.

In light of the findings, the Tribunal varied the decision of the Repatriation Commission, finding that Mr Clark's gun phobia and alcohol dependence were indeed war-caused disabilities. It set aside the previous decision and substituted it with a finding that these conditions were war-caused, effective from 22 May 2000. The Tribunal also noted that Mr Clark did not pursue his claim for acquired cataracts, and affirmed the original decision regarding this condition. The matter was remitted to the Repatriation Commission for the assessment of Mr Clark's entitlement to a disability pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The RMA has not determined a Statement of Principles in relation to the condition of gun phobia, and has not given notice, pursuant to section 196G of the Act that it intends to carry out an investigation in respect of this condition. The proper approach in such circumstances is for the Tribunal to apply the tests in subsections 120(1) and 120(3) of the Act, as enunciated in the High Court decisions of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.THE EVIDENCE BEFORE THE TRIBUNAL The Tribunal has noted the evidence regarding Mr Clark's eye conditions, (reports of Dr P Beaumont, ophthalmic surgeon for example), but has not detailed that evidence here or made comment upon it. As noted above, the Applicant was not pursuing his claim for acquired cataracts and his vitreous degeneration left eye, and misaligned foveal receptors had, at the time of the Hearing, been accepted by the Respondent as war-caused disabilities.Mr Peter Ross Clark - Applicant Mr Clark whose statement of 19 September 2002 (Exhibit A2), was before the Tribunal, also gave oral evidence. The statement he provided addressed points made in the report of Commodore Mulcare. Mr Clark told the Tribunal that he had a sheltered but strict upbringing in rural New South Wales. His mother had died when he was a boy and his elder brother had been sent away to school. His father, who was a policeman in towns such as Broken Hill, had brought him up in and around police stations. He had some experience with guns on his father's farm, shooting kangaroos and rabbits. His evidence was that he had always been interested in the sea, and left to join the Navy when he was seventeen. The Applicant explained that he wanted to be a clearance diver in the Navy, but this was only open to Able Seamen, so he did a gunnery course instead, at HMAS Cerberus, and became a Gunnery Rate. He said that while he was at HMAS Cerberus he did not drink, and would spend his weekends visiting relatives, being only seventeen. He joined HMAS Quiberon to complete training as an Ordinary Seaman. It was a happy ship and he wanted to be liked by his peers he said. Initially the ship travelled to Hobart and Adelaide, and returned to New South Wales waters before progressing to Singapore on assignment to the FESR. He gave evidence that while "working up" off Sydney in 1960, a number of gun trials were conducted. The Applicant explained that HMAS Quiberon had one 4" gun, and his action station was on the gun crew for this gun. His duties were passing up ammunition and removing the cordite cases. The Applicant told the Tribunal that the gun was faulty. When it was fired manually, it operated correctly he said. However, when it was fired using the Close Range Blind Fire Director – CRBFD ("the Director"), the elevation would drop without warning, and the gun would then fire at random. The Applicant related one incident where this had occurred and part of the guard rail and the boom rail, which were to stop the ammunition cases from going over the side of the ship, had been blown off. The canteen had also been damaged in this incident he said, although he presumed that the damage was sufficiently minor not to warrant mention in the monthly operational report for HMAS Quiberon. He told the Tribunal that he recalled the incident clearly even though he was not able to recall the precise date, and thought it was off Sydney in June 1960.

Decision

Reasons for decision

Thus, the Tribunal could not be satisfied beyond reasonable doubt, that there was no sufficient ground for determining that the Applicant's alcohol dependence was not war-caused pursuant to sections 120(3) and 120(1) of the Act, and accordingly finds that Mr Clark's alcohol dependence was war-caused within the terms of the legislation.DECISION The Tribunal determines that the decision under review pertaining to the Applicant, Mr Peter Ross Clark, is varied as follows: (1) By agreement of the parties, the Applicant's conditions of vitreous degeneration left eye and misaligned foveal receptors are war-caused disabilities within the terms of section 9 of the Veterans' Entitlements Act 1986, with the date of effect being 19 July 2000.(2) By agreement of the parties the diagnosis of post traumatic stress disorder with alcohol dependence is amended to gun phobia and alcohol dependence. (3) The Tribunal sets aside the decision of the Repatriation Commission dated 16 February 2001 as varied and affirmed by the Veterans' Review Board dated 13 August 2001 which found that the Applicant's conditions of gun phobia and alcohol dependence were not war-caused disabilities pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that Mr Clark's conditions of gun phobia and alcohol dependence were war-caused within the terms of section 9 of the Veterans Entitlements Act 1986 with date of effect being 22 May 2000. (4) The Tribunal notes that the Applicant did not pursue the claim for his condition of acquired cataracts to both eyes, and the Tribunal affirms the decision of the Repatriation Commission in that regard. The matter is remitted to the Repatriation Commission for assessment of Mr Clark's entitlement to disability pension.

Ratio Decidendi

Legal Principle Established

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