Constable and Repatriation Commission

[2008] AATA 1099

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1099

ADMINISTRATIVE APPEALS TRIBUNAL      )

)        No Q 2005/0485

VETERANS’ APPEALS DIVISION		)
Re		ROBERT PATRICK CONSTABLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date9 December 2008

PlaceBrisbane (heard in Townsville)

Decision

The Tribunal affirms the decision under review.

  .....................[sgd].........................

  SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – alcohol abuse/dependence – diagnosis – whether alcohol abuse war-caused – clinical onset of alcohol abuse – whether reasonable hypothesis – Deledio step 4 – decision affirmed

Veterans’ Entitlements Act 1986 (Cth), ss 9, 19, 120, 196B

Constable and Repatriation Commission [2004] AATA 1151
Constable v Repatriation Commission [2005] FCA 928
Repatriation Commission v Constable (2006) 151 FCR 391
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Norton [2008] FCA 1132

REASONS FOR DECISION

9 December 2008 M J Carstairs, Senior Member      

1.          This is the re-hearing of Robert Patrick Constable’s application for review of the rejection of his claim for disability pension for “alcohol abuse” disorder.             Mr Constable says his alcohol disorder resulted from his operational service with the Australian Army in Vietnam between July 1969 and July 1970.  The Federal Court set aside my first decision on Mr Constable’s matter[1]. The Full Federal Court confirmed that there had been an error of law, warranting the matter being re-heard[2].

[1]        The relevant citations are: Constable and Repatriation Commission [2004] AATA 1151; Constable v Repatriation Commission [2005] FCA 928; Repatriation Commission v Constable (2006) 151 FCR 391.

[2]         Repatriation Commission v Constable (2006) 151 FCR 391.

2.          Central to Mr Constable’s contention of there being a relationship between defence and service was his experience of an incident that occurred during one of his weekly trips travelling between Vung Tau and Nui Dat as a driver/storeman.  I have referred to this as “the Land Rover incident”.  He described what happened as follows[3]:

7. On one trip to Nui Dat I recall an incident that occurred as I was approaching a bridge near the vicinity of Baria. A Land Rover was rapidly approaching the bridge from the opposite direction sounding its horn in what appeared to be an urgent manner. I bought [sic] my vehicle to a halt prior to entering the bridge. As the vehicle passed I could see 3 wounded troops in the vehicle. I recall that I could clearly see the bandages that were wrapped around their body parts (including their heads) were soaked in blood. I felt physically upset as the vehicle passed me. Whilst I had previously seen wounded in hospital (for example when mates required attention at the hospital in Vung Tau), this was different. I felt sick in my stomach.

8. In my dreams I often see this scene repeated, though the vehicle is driving on the wrong side…