Corbin and Repatriation Commission

[2006] AATA 167

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 167

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/328

GENERAL ADMINISTRATIVE DIVISION		)
Re		PATRICK CORBIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Ms R Hunt
Member Dr J Campbell

Date27 February 2006

PlaceSydney

Decision The tribunal affirms the decision under review.

..............................................

Ms R Hunt
  Presiding Member

CATCHWORDS

VETERANS’ APPEALS – Pension claim – Alcohol abuse – Claimed link to operational service - Not “reasonable hypothesis” – “Raised facts” considered – Satisfaction beyond reasonable doubt - No sufficient grounds for finding any relationship to operational service – Alcohol abuse not war caused – Decision affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 ss 120, 120A

CASE LAW

Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003)
Repatriation Commission v Deledio (1998) 83 FCR 82
McKenna v Repatriation Commission (1999) 86 FCR 144
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 65 ALD 609
Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

17 February 2006	Senior Member Ms R Hunt Member Dr J Campbell
SUMMARY

1.      Mr Corbin applied to the tribunal for review of a decision made by the Repatriation Commission which refused part of his claim for a pension in respect of his alleged war-caused conditions. Mr Corbin served in Malaya (as it was then known) in 1966 and 1997 for a period which included some operational service pursuant to the Veterans’ Entitlements Act 1986. Mr Corbin claimed that his experiences during operational service led to his longstanding alcohol abuse. However, the material before us satisfies us beyond reasonable doubt that there are no sufficient grounds for determining Mr Corbin developed his alcohol abuse condition as a result of operational service. It follows that the tribunal has decided that his claim on this ground cannot succeed.

ISSUE

2.        The issue for the tribunal was whether the condition of alcohol abuse was war-caused. Mr Corbin initially claimed that he suffered from a number of health problems as a result of his service in Malaya. Some of his claims were accepted by the Commission. Mr Corbin then sought review of the rejection of his remaining claims. At the tribunal hearing, Mr Corbin proceeded with his claim in respect of alcohol abuse only.

LEGISLATIVE PROVISIONS GOVERNING

3. Section 120 of the Veterans’ Entitlements Act 1986 sets out the required standard of proof.  Subsection 120(1) makes it clear that where a claim for a pension in respect of incapacity from an injury or disease relates to operational service, the tribunal shall determine that the injury or disease was war-caused, unless it is satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination.

4. Subsection 120(3) then explains that, in applying subsection (1) of section 120 in respect of the incapacity of a person from injury or disease, the tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury or disease was war-caused after consideration of the whole of the material before it and a further step. That is, if the tribunal is of the view that the material does not raise a reasonable hypothesis connecting the injury with the circumstances of the veteran’s service, then the veteran cannot succeed in his claim.

5. Subsection (3) is affected by section 120A. Section 120A(3) addresses the reasonableness of the hypothesis and provides that it must be assessed by reference to Statements of Principles (SoPs). That is, if a SoP is in place in respect of a kind of injury or disease, then the hypothesis put forward by the applicant is tested against that SoP.

ANALYSIS AND CONSIDERATION

6.        Mr Corbin arrived in Butterworth in Malaya on 22 June 1966 and served there until 28 May 1967, which was when he returned to Australia. The delegate, who accepted some of Mr Corbin’s disabilities as arising out of operational service entitling him to the 40% rate of pension, rejected other claims including the claim for alcohol abuse. In making the original decision, the delegate detailed Mr Corbin’s operational service as being from his date of arrival on 22 June 1966 until 11 August 1966. The Veterans’ Review Board, when reviewing the initial decision, detailed the relevant service period as being from 22 June 1966 until 14 September 1966. At the hearing, Mr Doube for the Commission undertook to obtain a copy of the instrument of allotment covering Mr Corbin’s operational service so that it could be determined accurately. A copy of the instrument was before the parties and the tribunal before the tribunal made its decision.

7. The instrument of allotment, made on 28 December 2000, was issued under subsection 5B(2) of the Veterans’ Entitlements Act 1986 and covers several Australian army, navy and air force units and lists the operational service period for each unit. The listing for Mr Corbin’s unit, 110 LAA Bty in Malaysia, shows the period of this unit’s service ended on 11 August 1966. More importantly, in view of Mr Corbin’s evidence about the time of the event or “severe stressor” he credited as the cause of his alcohol abuse condition, Mr Corbin’s operational service did not start on 22 June 1966. The instrument shows the unit went into its period of operational service some time later, that is, on 1 July 1966. The full period shown is from 1 July 1966 to 11 August 1966.

8.        Mr Corbin told the tribunal that the trigger for his condition was a visit to a brothel in Penang shortly after his arrival at Butterworth. Mr Corbin gave evidence that the incident occurred 3 or 4 days after he arrived at Butterworth. He said there was little entertainment at Butterworth and the servicemen took the ferry across to the island of Penang quite frequently. He described how he was part of a group who decided to see an “exhibition” at a brothel. He found the experience distasteful and humiliating, although he admitted under cross-examination that he made further visits later during his service, albeit just having a drink outside and not going upstairs again. He claimed his physical integrity was threatened and that his feelings of shock and horror in response brought him within the SoP for alcohol abuse. He said he suffered ribbing about the incident back at the base. His reaction was to start drinking heavily and he has done so ever since. We were provided with a detailed account of the distasteful exhibition and events that followed. We were asked to accept that Mr Corbin, as a young man of strong Roman Catholic beliefs and former altar boy, was sufficiently confronted to experience feelings of threat to his physical integrity for the purposes of the definition of “experiencing a severe stressor” in the relevant SoP for alcohol abuse, Instrument no. 76 of 1998.

9.        Clause 4 of the SoP for alcohol abuse sets out that at least one of the factors in clause 5 must be related to the relevant service of the applicant for a pension before a reasonable hypothesis has been raised. Mr Corbin argued that he had experienced a “severe stressor” in the brothel while on operational service. As is demonstrated by a reading of the instrument of allotment before us, Mr Corbin was not in fact engaged in operational service at the time he told us the incident in the brothel occurred. He gave evidence it happened 3 or 4 days after his arrival at Butterworth. However, for the purposes of his claim, he had not yet begun to engage in operational service or any “relevant service” so soon after his arrival at Butterworth. “Relevant service” is defined in the SoP as operational service, peacekeeping service or hazardous service.

10.      In addition to Mr Corbin’s oral evidence, we note that Dr Dinnen recorded, in his report of 30 June 2005, that Mr Corbin told him the brothel incident occurred in his first week in Malaysia. Dr Lewin also records, in his report of 13 July 2005, that Mr Corbin told him the brothel incident occurred within days of his arrival at Butterworth. All three sources indicate the event described as the “severe stressor” took place prior to commencement of Mr Corbin’s operational service. While we note Mr Corbin’s operational service commenced only 9 days after he arrived in Butterworth and that this is a relatively short time after his arrival, Mr Corbin’s recollection before the tribunal was clearly put. He told us there was not much to do in Butterworth except go to the “wet canteen” and the new arrivals were looking for ways to occupy themselves. He reiterated in his oral evidence that the incident occurred in “the very first week we arrived” as well as testifying it occurred in the first 3 or 4 days. Mr Corbin did not suggest any other incident might have caused his alcohol abuse problem. He made no argument that any other stressor during his 6 weeks of operational service might have brought about the condition or clinically worsened it. It follows that the tribunal has decided that Mr Corbin’s claim on the ground of his reaction to the brothel incident cannot succeed as it occurred prior to commencement of his operational service.

11.      The tribunal might well have been satisfied beyond reasonable doubt that there are no sufficient grounds for determining Mr Corbin developed his alcohol abuse condition as a result of the brothel incident, even if it had occurred during operational service. We have strong doubts that his wilful action in attending the brothel was a good basis for a claim as well as the severity of the stressor he experienced as a result and whether it amounted to a threat to his physical integrity. However, it is not necessary for us to consider the incident as a possible “severe stressor” because of the time frame in which it occurred.

DECISION

12.      The tribunal affirms the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt  

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 2 February 2006
Date of Decision: 27 February 2006         
Counsel for the Applicant: Mr B Winship 
Solicitor for the Applicant: Winship Lawyers        
Counsel for the Respondent: Mr G Doube          
Solicitor for the Respondent: Department of Veterans’ Affairs