Crabbe and Repatriation Commission - [2002] AATA 826

DECISION AND REASONS FOR DECISION [2002] AATA 826

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N2001/135

VETERANS' APPEALS DIVISION       )
           Re      Keith Hale Crabbe
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

Date20 September 2002
PlaceSydney

Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mr Crabbe has a war-caused post traumatic stress disorder, with symptoms of alcohol abuse as part of that condition, with effect from 21 September 1999. 2. The assessment of the correct rate of Disability Pension is remitted to the Repatriation Commission.

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Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS –Entitlement – Operational Service – Reasonable Hypothesis – Post Traumatic Stress Disorder - Diagnosis – Reasonable Satisfaction – Assessment
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Cooke (1998) 52 ALD 1; (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Dixon v Repatriation Commission (1999) 59 ALD 315
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Gorton (2001) 65 ALD 609
Re Cranage and Repatriation Commission (2000) 63 ALD 312; [2000] AATA 1119
Re Repatriation Commission and Freeman (2000) 61 ALD 259
Re Howe and Repatriation Commission (1999) 59 ALD 309
Re Hughes and Repatriation Commission [2000] AATA 571
Re Jehn and Repatriation Commission [2000] AATA 484

REASONS FOR DECISION

20 September 2002 Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Keith Hale Crabbe, the Applicant, of a decision by the Respondent, the Repatriation Commission ("the Commission"), made on 1 June 2000 (T2), which on review by the Veterans' Review Board ("the Board") on 30 November 2000 (T19), was varied by amending the diagnoses of the conditions "post traumatic stress disorder, alcohol dependence or alcohol abuse (in remission) and adjustment disorder" to diagnoses of "post traumatic stress disorder and alcohol abuse". The decision, as varied, was affirmed by the Board. In relation to the assessment of the rate of pension, the Commission's decision was set aside and in substitution, the Board decided that pension should be assessed at 30 per cent of the General Rate, with effect from and including 21 September 1999.
A hearing was held in Sydney before the Tribunal on 10 December 2001. Mr Crabbe provided oral evidence to the Tribunal as did Dr A Dinnen, Psychiatrist. Mr Crabbe was represented by Mr N Dawson of Counsel and the Commission was represented by Mr P Godwin, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T24) and the following Exhibits:
Exhibit No.   Description Date
A1      Applicant's Statement        28 May 2001
A2      Report…

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 Crabbe and Repatriation Commission

Details

AGLC: Crabbe and Repatriation Commission [2002] AATA 826
Case: [2002] AATA 826
Decision Date: 20 September 2002

CaseChat Overview and Summary

In the matter of Crabbe v Repatriation Commission, the Full Court of the Federal Court of Australia was asked to consider an appeal regarding the entitlement of the applicant to certain benefits under the Veterans' Entitlements Act 1986 (Cth). The central dispute was whether Mr Crabbe's service during the events on board HMAS Tobruk constituted "operational service" for the purposes of the Act, and whether he could be said to have contracted Post Traumatic Stress Disorder (PTSD) as a result of this service. The Full Court, comprising of Mansfield CJ, Weinberg and Le Mière JJ, was required to examine the evidence provided and the applicable legal principles.

The legal issues before the court included determining whether the events on board HMAS Tobruk constituted "operational service" and if Mr Crabbe's claims of PTSD could be substantiated under the current Statement of Principles concerning PTSD. Specifically, the court needed to assess whether the Tribunal had erred in concluding that Mr Crabbe's claims were not reasonable on the evidence, and whether the Tribunal had appropriately applied the principles of "reasonable satisfaction" in making its determination. The court also needed to consider whether the Tribunal had correctly applied the law in relation to the applicable Statement of Principles and the evidence of Mr Crabbe.

The Full Court held that the Tribunal had not erred in its approach to the evidence and had correctly applied the principles of "reasonable satisfaction" in making its determination. The court found that the Tribunal had given adequate consideration to Mr Crabbe's evidence and had appropriately assessed the likelihood that his PTSD was caused by the events on board HMAS Tobruk. The court noted that the Tribunal had considered the Statement of Principles and had concluded that Mr Crabbe's claims were not reasonable on the evidence. The Full Court upheld the Tribunal's decision and dismissed the appeal.

The Full Court did not make any orders as the appeal was dismissed. The decision of the Tribunal that Mr Crabbe was not entitled to the benefits under the Veterans' Entitlements Act 1986 (Cth) was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Statement of Principles considered relevant by the Tribunal and agreed to by the parties is Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999 concerning Post Traumatic Stress Disorder. The Tribunal notes that in the Full Court decision in Repatriation Commission v Gorton (2001) 65 ALD 609, the current Statement of Principles is applied and if the Applicant cannot succeed under the current Statement of Principles, then the Statement of Principles in force at the time of the original decision is to be utilised.EVIDENCE OF MR KEITH HALE CRABBE Mr Crabbe told the Tribunal that prior to his naval service, he was a normal 18 year old who enjoyed life and played a great deal of sport. He did not drink or smoke, he stated, prior to joining the Navy. Mr Crabbe noted that he had many friends and had no difficulties in making friends. Things changed for him, he believed, after having served in HMAS Duchess. Mr Crabbe told the Tribunal of his non-eligible service in HMAS Tobruk in 1960 or 1961 and of a particular incident involving HMAS Anzac. HMAS Tobruk, in which Mr Crabbe was serving at the time, was participating in training exercises. HMAS Anzac was approximately 12 kilometres away from HMAS Tobruk and her guns were trained on Mr Crabbe's ship. Mr Crabbe explained that usually, just before firing, the guns would be pointed in a different direction away from HMAS Tobruk. However, on this occasion, something happened which then resulted in HMAS Tobruk receiving a "salvo". One shell hit the boiler room, another took out the radio mast and the rest fell around the ship. Mr Crabbe described the shells as dummy shells or "blanks", but they were nevertheless high speed steel projectiles. At the time, Mr Crabbe was in the radio office and felt the ship shudder in addition to the entire ship losing power. Mr Crabbe was alone in the radio office as the rest of the men were having a morning tea break. It took four or five minutes to find out what had happened, when someone came and told him that the ship had been hit on the port side. He was told that the ship was taking water. The Chief Radio Officer then told Mr Crabbe to report to his mess deck where he was to retrieve his hammock, which was to be used with other hammocks, to fill the hole in the side of the ship. Within the next 15 to 20 minutes, Mr Crabbe found out that the ship was not going to sink. Action was taken to pump all the ship's fuel and water from the port side into the other side. This action caused the ship to tilt and raised the hole in the port side some four or six feet above the water line. Later, HMAS Anzac towed HMAS Tobruk to Sydney Harbour. Mr Crabbe told the Tribunal that when the shell hit the boiler room, two stokers were burnt, one across the chest and shoulders. The men were taken to the upper deck. While Mr Crabbe acknowledged that the ship's Record of Proceedings did not record any such injuries, he stated that the men were burnt and were attended to by the doctor and sick bay attendant.

Decision

Reasons for decision

DR J

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Ratio Decidendi

Legal Principle Established

Established by: DR J

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