Daryl Walley and Repatriation Commission - [2012] AATA 196

[2012] AATA 196

Division Veterans' Appeals Division

File Number(s)

2011/0864

Re

Daryl Walley

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal Deputy President J W Constance

Date 4 April 2012

Place Melbourne
Decision Summary
The decision of the Repatriation Commission made 8 April 2010, which refused Mr Walley’s claim for acceptance of alcohol dependence as being war-caused, is affirmed.
.......[sgd J W Constance]..................
Deputy President J W Constance
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION – Royal Australian Navy – whether a connection exists between the disease of alcohol dependence and the service rendered – whether the Statement of Principles No. 2 of 2009 upholds the contention that the disease of alcohol dependence suffered is on the balance of probabilities connected with the war service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4) and 120B(3)
CASES
Lees v Repatriation Commission [2002] FCAFC 398

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Gosewinckel [1999] FCA 1273

SECONDARY MATERIALS
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 2 of 2009

REASONS FOR DECISION
Tribunal Deputy President J W Constance
Date 4 April 2012
INTRODUCTION

In 2010 the Repatriation Commission rejected Mr Walley’s claim that his alcohol dependence was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth). Had his claim been accepted he would have been entitled to an increase in the rate of pension payable to him as well as payment of necessary treatment expenses.
Mr Walley has applied to the Tribunal to review the decision of the Commission. For the reasons which follow the decision will be affirmed.
LEGISLATION
Section 70 of the Act provides for the payment of a pension to a member of the Defence Forces if the member is incapacitated from a defence-caused injury or disease.
Subsection 120(4) requires the Tribunal to decide the issues relating to the entitlement to a pension under section 70 to its reasonable satisfaction.
Subsection 120B(3) provides in part:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12);
…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
BACKGROUND
The parties agree that the whole of Mr Walley’s service in the Navy is properly classed as defence service to which subsection 120(4) and subsection 120B(3) apply. They agree also that Mr Walley presently suffers from alcohol dependence and that Statement of Principles No. 2 of 2009 is applicable. I am satisfied that these agreements are appropriate.
ISSUES FOR DETERMINATION
The issues…

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 Daryl Walley and Repatriation Commission

Details

AGLC: Daryl Walley and Repatriation Commission [2012] AATA 196
Case: [2012] AATA 196
Decision Date: 4 April 2012

CaseChat Overview and Summary

Daryl Walley sought to have his alcohol dependence recognised as a war-caused disease under the Veterans' Entitlements Act 1986. The Repatriation Commission rejected his claim, and he appealed to the Administrative Appeals Tribunal. The Tribunal was required to determine whether there was a connection between the disease of alcohol dependence and the service rendered by Mr Walley in the Royal Australian Navy between 13 December 1982 and 3 February 1987. Specifically, the Tribunal needed to assess if the disease was connected to Mr Walley's service on balance of probabilities, in accordance with the Statement of Principles No. 2 of 2009.

The Tribunal considered the evidence of Mr Walley's service, the incidents he experienced, and his subsequent alcohol consumption. Mr Walley testified that he began consuming alcohol regularly during his service on HMAS SUPPLY, increasing his intake to 12 cans of beer per night by 1984. Despite this, his work performance and social activities were not disrupted until 1986-1987 when he received subtle comments about his drinking from his superiors. The Tribunal found that there was no evidence to support a connection between Mr Walley's alcohol dependence and his war service on the balance of probabilities.

The Tribunal concluded that Mr Walley's alcohol dependence was not connected to his service in the Navy. The decision of the Repatriation Commission to reject his claim was affirmed.

No further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Between 13 December 1982 and 19 December 1983 Mr Walley was posted to HMAS SUPPLY.Mr Walley’s evidence Mr Walley gave evidence of three separate incidents in which he was involved during 1983 whilst serving on HMAS SUPPLY.[1][1] The exact dates of these incidents have been taken from the report of Writeway Research Service Pty Ltd dated 16 August 2011, exhibit R4.High pressure steam leak 15 February 1983 Mr Walley was working alone in #2 pump room when an isolation valve ruptured allowing high temperature steam to escape. The jet of steam engulfed the ladder which was the normal means of exiting the room. Mr Walley sheltered in a cofferdam space adjoining the pump room for about 10 minutes. He then returned to the pump room and escaped by climbing up a series of plates welded to the pump room wall.Engine room fire 13 May 1983 Lagging around a pipe caught fire in the engine room. Mr Walley was a member of the fire-fighting crew tasked with extinguishing the fire. He and another crew member were required to go part-way down a ladder into the engine room dragging a fire-fighting hose. He was at risk of falling approximately five-six meters. The fire was extinguished after about five minutes.Refuelling incident 28 August 1983 The HMAS SUPPLY was engaged in refuelling another ship at sea. Mr Walley was stationed at the outlet valve in order to close the valve when required. During the operation the distance between the ships increased causing the hose connection and cables to snap and rebound in the immediate vicinity of Mr Walley. He was showered by fuel escaping from the fuel line.Alcohol consumption When he gave evidence to the Tribunal Mr Walley said that he started to consume alcohol on a regular basis whilst serving on HMAS SUPPLY. He began by consuming the ration of two cans of full-strength beer per night, but after the incident with the winch he increased his consumption up to 12 cans per night when the ship was in harbour and he was on shore. He described his alcohol consumption as being a “problem” in the mid‑eighties. Between 9 January 1984 and 15 January 1985 Mr Walley was posted to HMAS SWAN[2] which was undergoing a refit in Williamstown, Victoria. During this time he lived with his parents. He told the Veterans’ Review Board that during this time he would sometimes consume three or four stubbies per day, sometimes more. He said that his average consumption was about 12 stubbies per day. His parents did not comment on his drinking habits at this time.[3][2] Exhibit A1 p.2.[3] Exhibit R1 pp.34-35. Mr Walley was posted to HMAS CEREBUS from 15 January 1985 until 3 February 1987.[4] Before the Tribunal he said that it was a lot easier to obtain alcohol on this posting and his drinking “just snowballed”. Before the Veterans’ Review Board Mr Walley said that the first comments as to his work performance made by his superiors were made in 1986-87. He described these comments as “subtle ... about pulling [his] head in with the drink.”[5] No disciplinary action was taken.[6][4] Exhibit A1 p.2.[5] Exhibit R1 p.43.[6] Exhibit R1 p.44.

Decision

Reasons for decision

Mr Walley’s statements as to his work and social activities during 1984 and 1985 indicate that he continued to function normally in this regard and there is no evidence of disruption of any recreational activities. His service medical records do not indicate any problems with alcohol use. It was not until 1986-1987 that any comments were made by his superiors as to his alcohol consumption.CONCLUSION The decision of the Repatriation Commission made 8 April 2010, which refused Mr Walley’s claim for acceptance of alcohol dependence as being war-caused, will be affirmed.

Ratio Decidendi

Legal Principle Established

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Division	Veterans' Appeals Division
File Number(s)	2011/0864
Re	Daryl Walley
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President J W Constance
Date	4 April 2012
Place	Melbourne