Darrell Wallam and Repatriation Commission - [2014] AATA 679

[2014] AATA 679

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/1304

Re

Darrell Wallam

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Dr M Denovan, Member

Date 17 September 2014

Place Brisbane
The Tribunal affirms the decision under review.

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Dr M Denovan, Member
CATCHWORDS
VETERANS' AFFAIRS – Benefits and entitlements – Eligibility for pension – Anxiety disorder – alcohol dependence – death of a significant other – No connection between eligible defence service and condition – Not entitled to any benefits – Decision affirmed.
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 70, 120, 196B
CASES
RE Repatriation Commission v Nancy Law [1980] FCA 92
Roncevich v Repatriation Commission [2005] HCA 40
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder Instrument No. 102 of 2007 as amended by Instrument No. 43 of 2010 and Instrument Number No. 16 0f 2011
Statement of Principles concerning Alcohol Dependence Instrument No. 2 of 2009
REASONS FOR DECISION
Dr M Denovan, Member
17 September 2014
INTRODUCTION

The applicant in these proceedings is Mr Darrell Wallam (“applicant”). The applicant served in the Australian Army (“the Army”) from 7 December 1970 to 6 December 1979. Only service from 7 December 1972 is eligible defence service within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).
The applicant has been diagnosed with anxiety disorder and alcohol dependence. His younger brother, Tony (Anthony) Wallam, enlisted in the Army in 1973. Approximately one year after enlisting, Tony went missing and his decomposed body was found some weeks later in a dam. The applicant claims his psychiatric conditions developed as a consequence of the way the Army treated him following the death of his brother.
He has sought medical treatment and pension for incapacity from the conditions under the Act on that basis. The Repatriation Commission denied his claim, and that decision was affirmed by the Veterans’ Review Board (“VRB”) on 18 January 2013.
The diagnosis of anxiety disorder and alcohol dependence has been provided by the applicant’s treating psychiatrist, Dr Balkin, and is not in dispute. Both parties accept

Dr Balkin’s opinion that the clinical onset of both conditions was in 1974.
LEGISLATION AND ISSUES
Under s 70(5)(a), a disease contracted by a member of the Forces is taken to be a defence-caused disease if the disease “arose out of, or was attributable to, any defence service”. Section 70(7) provides in effect that where, in the opinion of the Commission, the incapacity of a member of the Forces was due to a disease that would not have been contracted but for the member having rendered defence service, the incapacity shall be deemed to have arisen out of that disease, and the disease is deemed to be a

defence-caused disease contracted by the member.
The issues that have arisen in the present matter are to be decided in accordance with the civil standard of proof, that…

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 Darrell Wallam and Repatriation Commission

Details

AGLC: Darrell Wallam and Repatriation Commission [2014] AATA 679
Case: [2014] AATA 679
Decision Date: 17 September 2014

CaseChat Overview and Summary

The case of Darrell Wallam against the Repatriation Commission involved a dispute over the eligibility of the applicant for a pension due to claimed psychiatric conditions stemming from his military service. The applicant argued that the stress and trauma associated with the death of his brother, a fellow soldier, during his service had caused him to develop anxiety disorder and alcohol dependence. The Repatriation Commission rejected the applicant's claim, leading to an appeal to the court.

The central legal issue before the court was whether the applicant's psychiatric conditions were connected to his military service, a requirement for eligibility for pension benefits under the relevant legislation. Specifically, the court needed to determine if the applicant's psychiatric conditions could be traced back to events that occurred during his service or if they were a result of other factors unrelated to his service. The court had to assess the evidence presented regarding the causation of the applicant's conditions and whether there was a sufficient connection to his military service to warrant pension benefits.

The court examined the evidence and found that the applicant's psychiatric conditions began in 1974, well before the events in 1976 that he cited as causative factors. There was no medical evidence to suggest that his psychiatric conditions were caused or aggravated by his military service. Furthermore, the court found no evidence linking the delays in informing the applicant of his brother's death, or the lack of support and counselling, to his development of anxiety disorder and alcohol dependence. The uncertainty surrounding his brother's death, rather than the military service itself, was identified as the likely cause of his conditions. The court concluded that the applicant's service did not contribute to his psychiatric conditions, and therefore, he was not entitled to pension benefits.

The court affirmed the decision of the Repatriation Commission, finding that the applicant was not eligible for benefits due to the lack of a causal connection between his psychiatric conditions and his military service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As Dr Balkin indicated the clinical onset of the applicant’s psychiatric conditions was in 1974, events occurring in 1976 such as this, could have had no bearing on the causation of those conditions. There is no suggestion in the medical evidence that his psychiatric conditions have been caused or aggravated by his inability to access his brother’s possessions. CONCLUSION I accept that the deceased was a family relative of the applicant, and that the applicant was close to his brother. For the applicant’s claim to succeed, there must be a causal connection between the factors in the SoPs relied upon and the applicant’s service. Although the relevant legislation does not impose an onus of proof, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist.[2] [2] See McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, and Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, at [18]. No evidence supports the contention that the Army was responsible for the delay between the death of Pte Tony Wallam and the time the applicant was informed of the death, or the fact that he was unable to attend his brother’s funeral. No evidence supports the contention that the delays in being informed about his brother’s death, and/or his inability to attend the funeral, or the lack of counselling and other support were facts that contributed to the applicant developing either of the two psychiatric conditions claimed. I accept that it is the uncertainty about the circumstances surrounding his brother’s death and the cause of his brother’s death that has led to the applicant developing anxiety disorder and alcohol dependence. It is more than likely that the applicant would have been troubled by the uncertainty surrounding his brother’s death whether or not he was serving in the military. The Army was not in possession of information that could have put the applicant’s mind to rest. It is unfortunate that no more is known, but the lack of information is not in any way related to the applicant’s service. At the hearing, the applicant himself said that it is no one’s fault, and there was no one to blame. Had the applicant been working elsewhere at the time of his brother’s death, no further information about his brother’s death would have been available. It does not advance the applicant’s claim that Pte Tony Wallam was a serving member at the time of his death. The applicant was not a dependent of his brother, and it is only dependents of the deceased that may, in certain circumstances, be compensated for the death of a member. I do not accept the recently advanced contention that, but for the applicant’s advice, the deceased may not have joined the Army. There is no mention of such a contention in either the treating psychiatrist’s report, or any other of the statements made by the applicant to either the respondent or the VRB. The death of his brother was related temporally only to the applicant’s service.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1304
Re	Darrell Wallam
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Dr M Denovan, Member
Date	17 September 2014
Place	Brisbane