Cove and Repatriation Commission (Veterans' entitlements) - [2021] AATA 3095

Cove and Repatriation Commission (Veterans' entitlements) [2021] AATA 3095 (1 September 2021)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/2145 and 2017/3890
Re:Alan Cove
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:1 September 2021
Place:Melbourne

The order of the Tribunal is to set aside the decisions of the Veterans’ Review Board dated 16 February 2016 and 23 June 2017 and substitute that Mr Cove is entitled to a pension under Part 2 of the Veterans’ Entitlements Act 1986 (Cth) for his PTSD and irritable bowel syndrome.
....[SGD]..........................................................
Deputy President Britten-Jones
Catchwords
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for pension – claim for compensation for PTSD and irritable bowel syndrome – applicant experienced Category 1A Stressor – whole of material points to a reasonable hypothesis connecting injuries with operational service – hypothesis not disproved beyond reasonable doubt – four steps of Deledio satisfied – applicant’s PTSD is war-caused resulting from traumatic events while rendering operational service – decision is set aside and substituted
Legislation
Statement of Principles concerning posttraumatic stress disorder (No. 82 of 2014) (Cth)
Statement of Principles concerning irritable bowel syndrome (No. 27 of 2011) (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Border v Repatriation Commission [2010] FCA 1430; 191 FCR 163
Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408
Byrnes v Repatriation Commission [1993] HCA 51; 177 CLR 564
Hunter v Repatriation Commission [2010] FCA 145; 114 ALD 89
Mines v Repatriation Commission [2004] FCA 1331; 40 AAR 238
Repatriation Commission v Budworth [2001] FCA 1421; 116 FCR 200
Repatriation Commission v Deledio [1998] FCA 391; 83 FCR 82
Repatriation Commission v Stares (1996) 66 FCR 594
REASONS FOR DECISION
Deputy President Britten-Jones
1 September 2021

This is an application for review of decisions of the Veterans’ Review Board dated 16 February 2016 and 23 June 2017, which denied the claim by the applicant (Mr Cove) for a pension under Part II of the Veterans Entitlements Act 1986 (Cth)[1] for irritable bowel syndrome, post-traumatic stress disorder (PTSD) and alcohol use disorder. Mr Cove only continues to pursue claims for irritable bowel syndrome and PTSD.
[1] All references to legislation are to the Veterans Entitlements Act 1986 unless otherwise stated.
The matter was first heard by the Tribunal in January and November 2018 but the decision arising from that first hearing was set aside by the Federal Court and remitted to be reheard by the Tribunal. The transcript from the first hearing was accepted as evidence in this hearing but the matter proceeded de novo.
Mr Cove served in the Royal Australian Navy from 26 August 1963 to 26 August 1972. He claims that his PTSD and irritable bowel syndrome were war-caused and resulted from one or more traumatic events that happened while he was rendering operational service as follows:
(a)17 February 1966 to 26 April 1966 in Malaysia and Singapore;
(b)27 April 1966 to 9…

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.

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Details

Case: [2021] AATA 3095
Decision Date: 1 September 2021

CaseChat Overview and Summary

The case of *Cove v Repatriation Commission* concerned an appeal by Mr Cove against decisions of the Veterans’ Review Board regarding his claim for a pension under the *Veterans’ Entitlements Act 1986* (Cth) for post-traumatic stress disorder (PTSD) and irritable bowel syndrome. The dispute centred on whether Mr Cove's conditions were war-caused, arising from his operational service in the Royal Australian Navy. The matter was heard by Deputy President Britten-Jones.

The primary legal issue before the court was to determine whether a reasonable hypothesis existed connecting Mr Cove's PTSD to his operational service, and if so, whether that hypothesis had been disproved beyond reasonable doubt. This required the court to consider the four stages of the *Deledio* process, which governs the assessment of claims for veterans' entitlements. The court also had to determine if Mr Cove's PTSD was a war-caused disease for which the Commonwealth was liable to pay compensation.

Deputy President Britten-Jones found that Mr Cove suffered from PTSD and that the evidence, including his own testimony and reports from three psychiatrists, pointed to a hypothesis connecting his condition to traumatic events during his operational service in 1966, specifically during the Confrontation in Indonesian waters and while serving on HMAS Melbourne during the collision with HMAS Voyager in 1964. The court accepted Mr Cove's evidence as honest, despite some inaccuracies in recalling the precise timing and location of events due to the passage of time. The court was satisfied that the hypothesis of a connection between Mr Cove's PTSD and his operational service was not disproved beyond reasonable doubt, and that his PTSD was a war-caused disease.

Consequently, the court set aside the decisions of the Veterans’ Review Board and substituted a decision that Mr Cove was entitled to a pension under Part 2 of the *Veterans’ Entitlements Act 1986* for his PTSD and irritable bowel syndrome. The Commonwealth was found liable to pay him compensation for his incapacitation from war-caused PTSD.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal heard oral evidence from Mr Cove, a historian named Dr Palazzo, and three psychiatrists named Drs Sundin, Martin and Ewer. There was not a significant degree of dispute about the factual and opinion evidence. Both parties agreed that Mr Cove was an honest witness who did his best to recall events and did not intentionally embellish them or couch them to support his case. However, the respondent did say that Mr Cove’s evidence was affected by subsequent knowledge that he has gained through researching the historical events surrounding his service and should therefore not be entirely accepted. I find that Mr Cove was an honest witness whose final recollection of events should be accepted.Evidence from Mr Cove Mr Cove provided a written statement dated 16 June 2016. On 16 February 2016 and 23 June 2017 Mr Cove gave evidence to the Veterans’ Review Board. Mr Cove gave evidence to the Tribunal at the first hearing on 25 January 2018 during which he made some changes to his evidence in his written statement dated 16 June 2016. Finally, there is Mr Cove’s oral evidence to the Tribunal at this hearing on 2 August 2021. I have also had regard to the following medical reports which recorded Mr Cove’s history as told by him. Dr Martin interviewed Mr Cove on 14 November 2014 and Mr Cove described to him his experiences during his naval service. Dr Sundin interviewed Mr Cove on 12 December 2017 and took a history from him as part of a psychiatric examination. Dr Ewer also interviewed Mr Cove and took a history from him as part of a psychiatric report dated 17 May 2021. Mr Cove confirmed the accuracy of the history recorded by Dr Ewer. Mr Cove enlisted in the Navy on 26 August 1963, aged 17. He underwent three months of recruit training. He was serving on the HMAS Melbourne when it collided with the HMAS Voyager in February 1964. He was below the waterline when the hatches were closed. A long and stressful period ensued before he was able to make it to the upper deck. Many of his mates were killed. He watched in horror as crew members from the Voyager jumped from the ship. Some of the men were on fire. He then witnessed the sinking of the aft section with all remaining crew. There is no dispute with respect to this traumatic event and that Mr Cove suffers PTSD related to it. Two years later in 1966, Mr Cove had four periods of operational service whilst on board the HMAS Vampire. It was the evidence with respect to the events of 1966 that Mr Cove changed, in part, at the time of the first Tribunal hearing in January 2018. These changes were not so much whether an event occurred but more so where and when. For example, the events involving bombardments and sampans did not take place in the waters off Vietnam but rather they occurred in Indonesian waters during the third period from 9 June to 16 July 1966. It is entirely understandable that Mr Cove recalled some of these events inaccurately because they are events from over 50 years ago. With respect to the four periods of operational service in 1966, I am prepared generally to accept the evidence that Mr Cove has given to the Tribunal in 2018 and 2021 which I set out below.17 February to 26 April 1966 in Malaysia and Singapore

Decision

Reasons for decision

I consider that either hypothesis, namely that the traumatic events of 1966 aggravated or contributed to Mr Cove’s PTSD in a material sense, was not disproved beyond reasonable doubt.CONCLUSION Pursuant to s 9 I find that Mr Cove’s PTSD is a war-caused disease because it resulted from an occurrence that happened while he was rendering operational service. That occurrence happened four or five times when Mr Cove risked his life in the hostile waters off Indonesia during the Confrontation by climbing high up the mast and repairing the damaged communication cables. This traumatic event together with the earlier traumatic event of the HMAS Voyager collision caused Mr Cove to suffer from PTSD. Mr Cove has become incapacitated from his war-caused PTSD and under s 13, the Commonwealth is liable to pay him a pension by way of compensation. The order of the Tribunal is to set aside the decisions of the Veterans’ Review Board dated 16 February 2016 and 23 June 2017 and substitute a decision that Mr Cove is entitled to a pension under Part 2 of the Veterans’ Entitlements Act 1986 (Cth) for his PTSD and irritable bowel syndrome.

Ratio Decidendi

Legal Principle Established

I am satisfied on the evidence that Mr Cove has symptoms which amount to PTSD.A Hypothesis connecting the PTSD with Operational Service? With respect to stage one of the Deledio process, I am satisfied that there is material before me that points to a hypothesis connecting the PTSD with the circumstances of the periods of operational service. Mr Cove gave evidence of four traumatic events and said that he feared for his life and for those of others. In summary, the allegedly traumatic events (subsequent to the collision between the HMAS Voyager and the HMAS Melbourne) that Mr Cove suffered in 1966 can be described as:(a)the fear of an attack in the harbour of Vung Tau;(b)bombardments from ship to shore in Indonesian waters;(c)the concern for his life from intercepting sampans and fishing vessels in Indonesian waters during the Confrontation; and(d)climbing the mast to repair communication cables. I will return to consider these events in more detail but for the purposes of a stage one Deledio analysis, I am satisfied that the material points to these traumatic events occurring during operational service. In particular, the material points to Mr Cove fearing for his life whilst high on the mast repairing cables and when patrolling the Indonesian waters and intercepting Indonesian vessels. The hypothesis is supported by the historical material referred to by Dr Palazzo, namely that at the relevant times and the relevant places the HMAS Vampire was engaged in the theatre of war which was the Vietnam war and the Confrontation. As a part of the war, the ship visited Vung Tau harbour and carried out anti-interdiction patrols and some bombardments. Without determining on the balance of probabilities the date of the onset of the PTSD, I am satisfied that the material points to symptoms arising after these events took place in 1966. Dr Martin said in his January 2015 report that Mr Cove noted psychiatric symptoms since the late 1970s. Mr Cove confirmed in his June 2016 statement that he described his symptoms to Dr Martin. Dr Sundin in her December 2017 report (as qualified by her evidence) said that Mr Cove’s distressing psychological symptoms onset in the mid to late 1970s. Dr Ewer said in his May 2021 report that it was difficult to say when Mr Cove first had sufficient symptoms to be diagnosed with PTSD and he could not say “that the PTSD was first diagnosable before 17 February 1966 but it is probably more likely that it was”. It follows that a hypothesis of clinical onset of PTSD post 1966 is consistent with all three of the psychiatric experts. The respondent did not dispute the hypothesis of a connection between Mr Cove’s PTSD and his operational service and I consider the hypothesis to be made out. Therefore, stage one of the Deledio process is satisfied.A Relevant SoP? It is not in dispute that the relevant SoP concerning posttraumatic stress disorder is No. 82 of 2014. Therefore stage 2 of the Deledio process is satisfied.A Reasonable Hypothesis?