Cooke and Repatriation Commission - [2001] AATA 629

DECISION AND REASONS FOR DECISION [2001] AATA 629

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/21

VETERANS' APPEALS DIVISION          )
           Re      COLIN MACK COOKE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member

Date4 July 2001
PlacePerth

Decision      The Tribunal affirms the decision of the Veterans' Review Board dated 18 March 1992 in so far as that decision: determined that the applicant was not suffering from a psychiatric disease; refused the applicant's claim that a condition described as "nervous stress" was a war-caused injury or a war-caused disease within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act"); and refused the applicant's claim for a disability pension under Part II of the Act in respect of "nervous stress".
  ...........(sgd S D Hotop)...........
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Australian Army from 1946 to 1953 – applicant claimed that condition of "nervous stress" war-caused – whether applicant suffering from mental "disease" – whether applicant suffering from recognised psychiatric condition

Veterans' Entitlements Act 1986 ss 5D(1), 5D(2), 9(1), 13(1), 120(1), 120(4)

Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Cooke (1998) 90 FCR 307

REASONS FOR DECISION

4 July 2001 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member

This matter is again before the Tribunal following a remittal by the Full Court of the Federal Court of Australia. The Tribunal, in its last decision in this matter on 12 February 1998, decided that "the applicant's anxiety state and back condition are war-caused within the meaning of the Veterans' Entitlements Act 1986". An appeal from part of the Tribunal's decision by the respondent to the Full Court of the Federal Court of Australia was successful. The Full Court ordered, on 23 December 1998, that, inter alia:
"The matter of the applicant's claim relating to his psychiatric condition be remitted to the Administrative Appeals Tribunal for determination according to law".

(Repatriation Commission v Cooke (FC981717) (1998) 90 FCR 307)

At the re-hearing by the Tribunal, the applicant was represented by Mr R C Hammal, a lay advocate, and the respondent was represented by Dr J T Schoombee of counsel. The Tribunal had before it the following exhibits:
·     applicant's statement of evidence, dated 19 May 1994, in Application for Review No W1992/122 (A1)
·     applicant's statement of evidence, dated 30 October 1997, in Application for Review No W1997/167 (A2)
·     report of Dr O Kay, Psychiatrist, dated 16 December 1993 (A3)
·     report of Dr O Kay, dated 24 March 2000 (A4)
·     letter from Ms M Sokolich, Australian Government Solicitor's office, to Dr Z Mustac, dated 12 April 1999 (R1)
·     report of Dr Z Mustac, Consultant Psychiatrist, dated 25 May 1999 (R2)
·     extract from Diagnostic and Statistical Manual of Mental Disorders (4th ed), pp 432-436 (R3)
·     report of Dr…

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 Cooke and Repatriation Commission

Details

AGLC: Cooke and Repatriation Commission [2001] AATA 629
Case: [2001] AATA 629
Decision Date: 4 July 2001

CaseChat Overview and Summary

The case of Cooke and Repatriation Commission involved the applicant, who served in the Australian Army from 1946 to 1953, lodging a claim for a disability pension under Part II of the Veterans' Entitlements Act 1986, citing "nervous stress" as a war-caused condition. The dispute centred on whether the applicant's condition qualified as a "disease" under the Act, specifically a mental ailment, disorder, defect, or morbid condition. The Full Federal Court's decision in Repatriation Commission v Cooke (1998) established that the determination of disease existence should be made on the civil standard of proof, meaning the respondent must be reasonably satisfied.

The legal issues before the court were whether the applicant's condition constituted a medically recognised psychiatric condition and if it qualified as a "disease" under the Act. The court had to consider the applicant's evidence, including his experiences during service, and the psychiatric evidence presented. The Tribunal needed to determine if the applicant's condition met the statutory definition of a "disease" and whether it was a war-caused mental condition.

The Tribunal reviewed the applicant's statements and oral evidence, noting his experiences in Japan, particularly attending numerous funerals, which he described as frequent and distressing. Despite these accounts, the Tribunal found that the whole psychiatric evidence did not reasonably satisfy them that the applicant had a diagnosable psychiatric condition. Therefore, the Tribunal concluded that the applicant's condition did not qualify as a "disease" within the Act's definition. Consequently, the Tribunal affirmed the Veterans' Review Board's decision that the applicant's claim for a disability pension was unjustified.

In summary, the court held that the applicant did not suffer from a medically recognised psychiatric condition, and thus, his claim for a disability pension was denied. The decision was based on the lack of sufficient evidence to meet the statutory definition of a "disease" and the absence of a war-caused mental condition.

Orders

Orders of the court

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Background

Background to the litigation

In Repatriation Commission v Cooke (above), the Full Federal Court held that the issue whether a disease (the subject of a claim by a veteran for a pension under Part II of the Veterans' Entitlements Act 1986 ("the Act")) exists is to be determined by the respondent (and, on appeal, by the Tribunal) "to its reasonable satisfaction" – that is, on the civil standard of proof – in accordance with s120(4) of the Act: see (1998) 90 FCR at 310, 312.General Background It is common ground that the applicant, who was born on 3 August 1927, served in the Australian Army from 12 March 1946 until 20 April 1953 and that he was posted to Japan in January 1947 where he served until his discharge. It is also common ground that on 15 June 1989 the applicant lodged with the respondent a claim for a disability pension under Part II of the Act in respect of various conditions from which he claimed he was suffering, including a condition which was described as "nervous stress" (1992 T documents, T3, p43). As regards the claimed condition of "nervous stress", the applicant's claim was refused by a delegate of the respondent on 19 December 1989 (1992 T documents, T2) and that refusal was affirmed by the Veterans' Review Board on 18 March 1992 (1992 T documents, T4).The Applicant's Evidence The applicant's evidence before the Tribunal comprised 2 statements of evidence (Exhibits A1 and A2) and his oral evidence. The Tribunal will refer only to those parts of the applicant's evidence that relate to his claimed psychiatric condition. The relevant contents of the applicant's statement of evidence dated 19 May 1994 (Exhibit A1) are as follows:"…37.On 28th May 1950, I was transferred to (sic) 3RAR to HQ BCOF Transit Section, Tokyo. There, my duties involved guard duty at the Commanding General's residence, attendance at funerals and Quartermaster duties.…43.During the period during which I served at HQ BCOF Tokyo, I served a bugler (sic) and I was required to attend various military functions such as funerals.44.I recall that the conditions during these funerals were so severe that my feet would become numb. The boots I was contained(sic) iron/steel horseshoe on the toe and hobnails. As well as being uncomfortable these also conducted coldness. I felt continually cold.45.When I was required to attend funerals of veterans who had died of wounds in hospital, I was psychologically effected (sic). These funerals were very frequent and stressful. I found the funerals disturbing, and I am often reminded of these. I recall that we were not allowed to find out the causes of what the veterans died of, and I often imagined myself in their position. I know however that many of the funerals involved people who had died of leukaemia as a result of radiation exposure in Japan.46.Attendance at these funerals were (sic) often a day long affair. There was only one gun carriage to carry the coffin on, and it was a two hour ride from base to the British Service Cemetery. Accordingly the stress of the occasion was with me very frequently.47.As a result of the stresses and conditions which I experienced in Japan, I continued to smoke at a higher rate than I had previously. As a result of my experiences in Japan, I became addicted to smoking. I could no longer quit the habit as I was able to previously. 48.I was discharged from the army in Japan in 1953."

Evidence

Evidence Before The Court

It is also common ground that on 15 June 1989 the applicant lodged with the respondent a claim for a disability pension under Part II of the Act in respect of various conditions from which he claimed he was suffering, including a condition which was described as "nervous stress" (1992 T documents, T3, p43). As regards the claimed condition of "nervous stress", the applicant's claim was refused by a delegate of the respondent on 19 December 1989 (1992 T documents, T2) and that refusal was affirmed by the Veterans' Review Board on 18 March 1992 (1992 T documents, T4).The Applicant's Evidence The applicant's evidence before the Tribunal comprised 2 statements of evidence (Exhibits A1 and A2) and his oral evidence. The Tribunal will refer only to those parts of the applicant's evidence that relate to his claimed psychiatric condition. The relevant contents of the applicant's statement of evidence dated 19 May 1994 (Exhibit A1) are as follows:"…37.On 28th May 1950, I was transferred to (sic) 3RAR to HQ BCOF Transit Section, Tokyo. There, my duties involved guard duty at the Commanding General's residence, attendance at funerals and Quartermaster duties.…43.During the period during which I served at HQ BCOF Tokyo, I served a bugler (sic) and I was required to attend various military functions such as funerals.44.I recall that the conditions during these funerals were so severe that my feet would become numb. The boots I was contained(sic) iron/steel horseshoe on the toe and hobnails. As well as being uncomfortable these also conducted coldness. I felt continually cold.45.When I was required to attend funerals of veterans who had died of wounds in hospital, I was psychologically effected (sic). These funerals were very frequent and stressful. I found the funerals disturbing, and I am often reminded of these. I recall that we were not allowed to find out the causes of what the veterans died of, and I often imagined myself in their position. I know however that many of the funerals involved people who had died of leukaemia as a result of radiation exposure in Japan.46.Attendance at these funerals were (sic) often a day long affair. There was only one gun carriage to carry the coffin on, and it was a two hour ride from base to the British Service Cemetery. Accordingly the stress of the occasion was with me very frequently.47.As a result of the stresses and conditions which I experienced in Japan, I continued to smoke at a higher rate than I had previously. As a result of my experiences in Japan, I became addicted to smoking. I could no longer quit the habit as I was able to previously. 48.I was discharged from the army in Japan in 1953." The relevant contents of the applicant's statement of evidence dated 30 October 1997 (Exhibit A2) are as follows:"…21.Between July 1950 and 20 April 1953, I attended all but one of the funerals which originated from Camp Ebisu, the Australian camp in Tokyo, as the funeral party's official bugler. I also acted as bugler twice for Armistice Day services at the British Commonwealth Cemetery which is the same cemetery where all the burials took place. I recall that during this period I missed just one funeral.22.I recall that I attended a considerable number of funerals. I cannot remember the specific number however, I have made enquiries with the Australian military authorities and I have obtained a list of Australians buried at Yokohama War Cemetery which I understand is what used to be called the British Commonwealth Cemetery. This list shows that there were 23 burials between 28 May 1950 and 20 April 1953. Such list is annexed to this Statement marked 'CMC.2'. Of the funerals during this period I only missed one. I notice from the list that on one occasion 3 and on another occasion 2 servicemen died on the same day. Whilst I no longer have any recollection of there being more than one casket at the funerals I attended, I assume there may have been more than one burial on these occasions. Apart from the funerals I attended whilst stationed in Tokyo, I recall that I attended one other funeral whilst serving in Japan. This was before I was posted to Tokyo, when as a band member in the full band, we attended a funeral for a lieutenant in the Signals Corp in Kure City, Hiroshima Prefecture. I was told by Corporal Les Fletcher, a fellow band member, that the deceased had died of leukemia. 23.I continue to have vivid flashbacks when I'm actually back at the British Commonwealth Cemetery or travelling in the funeral party to or from the cemetery. I find these flashbacks very distressing but I cannot avoid them.24.On the day appointed for a funeral, the funeral party would form and be inspected by an NCO after which we would board a bus or truck for a slow journey, covering about 25-30 miles in two hours to the British Commonwealth Cemetery travelling at cortege speed, following the military police escort and the gun carriage bearing the deceased. During this journey I would sit and wonder who the deceased was, what his name was, what he was like, whether I knew him, whether he might have been from my old battalion RAR which had been posted to Korea, what he died from, whether it was sickness, wounded in action, etc.25.The road was in poor condition. It was very bumpy with potholes and I would think of the body in the coffin on the gun carriage being thrown about and its state and I would think of whether the deceased had a wife and children, brothers and sisters, or whether he was a lone soldier with no one to mourn his passing, buried in a foreign land, or whether he had family who had lost their provider and who would look after them from now on. During the journey there was generally very little talking. The firing party and other mourners would remain silent.26.After arriving at the cemetery the coffin would be unloaded from the gun carriage, prepared for internment in an open grave, the firing party, honour guard, mourners, guests, war graves member, padre, the cemetery staff and myself, would assemble. The service would begin. I recall that I was continually frustrated as I could not hear what the padre was saying in relation to the deceased's name, rank, unit, etc, or how he met his demise. The firing party would receive a command to fire a salute to the deceased, several volleys were fired and then there would be a signal from the parade sergeant major to me to sound the last post on the bugle. Following this the parade was dismissed to await boarding and transportation for the journey back to the camp at Ebisu. The return journey would take much the same time as the journey to the cemetery.27.These long drawn out funerals were very distressing and I cannot wipe them from my memory. In a flash my memory takes me back to the burial cemetery with many thoughts. Was I burying friends, people I knew, people I have eaten with worked and soldiered with, camped with, or who were we burying?28.I have never been able to forget these funerals and whilst I was proud of the concept of the funerals, they worried and distressed me and between funerals I would continue to worry as to when I would next be ordered to attend the next funeral.29.I have no rhyme or reason why I should have flashbacks or memories of the funeral duties but I do know I have this complaint and in a particle of a second I am back at the place where these funerals had taken place, at the British Commonwealth War Cemetery, Japan. I hate the complaint but it is a complaint I cannot shake off. It is a sad fact ingrained into my mental facilities (sic) for the greater part of my life. So far as I can recall, I have had these memories ever since I started regularly attending the funerals at the British Commonwealth War Cemetery from the start of the Korean war.30.On occasions, I also wake having dreamt of the funerals, these are the most constant feature of my dreams."

Decision

Reasons for decision

On the basis of the whole of the psychiatric evidence before it, the Tribunal cannot reasonably be satisfied on the balance of probabilities that the applicant has been or is suffering from any medically recognised or diagnosable psychiatric condition. Accordingly, the Tribunal finds that the applicant, during the relevant period, has not been suffering from a "disease", being a "mental ailment, disorder, defect or morbid condition" (as defined in s5D(1) of the Act), within the meaning, and for the purposes, of ss 9 and 13 of the Act. It necessarily follows that the applicant has not been suffering from a "war-caused injury" or a "war-caused disease" of a mental nature within the meaning, and for the purposes, of ss 9 and 13 of the Act. Accordingly, no issue of causation arises.Decision For the above reasons the Tribunal affirms the decision of the Veterans' Review Board dated 18 March 1992 in so far as that decision

Ratio Decidendi

Legal Principle Established

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