Dean and Repatriation Commission

[2004] AATA 639

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/67

VETERANS' APPEALS  DIVISION		)
Re		IVAN NOEL DEAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date22 June 2004

PlaceHobart

Decision The Tribunal affirms the decision under review.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

Veterans' Affairs - disability support pension - whether applicant suffered from war-caused disequilibrium - whether there was a reasonable hypothesis within the meaning of s120(3) of the Act connecting the injury with the applicant's service.

Veterans' Entitlements Act 1986 - s120(1) and (3)

Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

22 June 2004 Miss Mary Imlach (Senior Member)         

Decision Under Review

1.      The applicant seeks review of a decision of the Veterans’ Review Board (VRB) made on 19 February 2003 affirming the determination of the Repatriation Commission to refuse the claim that his condition of disequilibrium be accepted as due to service.

Background

2.      The applicant served in the Australian Army from 30 September 1965 to 29 September 1967.   His eligible war service (which is also operational service) was from 28 May 1966 to 4 September 1966 in Brunei, Sabah and Sarawak.

3.      On 1 February 2000 the applicant lodged a claim with the respondent for entitlements under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”) claiming he suffered “a loss of balance”, later described as disequilibrium.   Mr Dean did not make a contention in his claim form linking disequilibrium and service.

4.      On 25 February 2000 the respondent refused the claim on the basis that the diagnosis of disequilibrium could not be made.   The respondent gave notice to Mr Dean of its decision on the same date.

5.      On 6 April 2000 the applicant lodged an application with the VRB seeking a review of the respondent’s determination.

6.      On 19 February 2003 the VRB affirmed the decision of the respondent to refuse the claim for disequilibrium and advised the applicant of its decision by letter dated 6 March 2003.

7.      The applicant lodged an application with the Administrative Appeals Tribunal on 23 April 2003 seeking a review of the decision of the VRB.

Applicant’s Case

8. The parties had agreed that in respect of the applicant’s operational service, subsections 120(1) and 120(3) of the Act applied and that the standard of proof was agreed as being that of a reasonable hypothesis. It was also agreed by the parties that the Repatriation Medical Authority had not issued any relevant Statement of Principle, nor have there been any relevant determinations or declarations under the Act in respect of the condition of disequilibrium.

9.      The applicant contended that there were only two issues in dispute:

(i)whether there is a link between the condition of disequilibrium suffered by Mr Dean and his operational service; and

(ii)whether the symptoms of disequilibrium constitute a separate condition in themselves or whether they are simply symptoms of Mr Dean’s previously accepted condition of bilateral sensory-neural hearing loss.

10.     Mr Benson for the applicant submitted that if the condition of disequilibrium were found to be a separate condition and linked to service, there should be a finding that it is a war-caused condition.    Should the symptoms be found to be symptoms of the previously accepted condition of bilateral sensory-neural hearing loss, there should follow a finding that those further symptoms were caused by service.   It was conceded by the applicant that the only circumstances in which the symptoms would not be caused by service, would be if it was found that the condition of disequilibrium was a separate condition and that the condition was not caused by service.

11.     The applicant gave oral evidence about the use of firearms during the period of his operational service and the symptoms of ringing in the ears, loss of hearing and loss of balance.

12.     On cross-examination by Mr Castle, the applicant acknowledged that he had been involved in a motor accident in 1979 at Georgetown in which he had been knocked unconscious.

Issues and Consideration

13.     The first question to be established is the identification of the disequilibrium as a separate disease.   The parties agreed that in respect of that issue the standard of proof is the balance of probabilities.

14.     Dr Bruce Taylor, a clinical and neurophysiologist gave written and verbal evidence in support of the applicant’s case.    In reply to a question by Mr Benson “Are the symptoms of disequilibrium symptoms of that condition or do they constitute a separate condition of themselves?”   Dr Taylor stated:  “They constitute a separate condition of themselves.”

15.     On the basis of Dr Taylor’s oral evidence, I find that the applicant suffers from the disease of disequilibrium as a separate condition from the accepted condition of bilateral sensory-neural hearing loss.

16.     Having established that the applicant has the separate condition of disequilibrium, we must establish how such a claim is assessed.

17. The Act makes specific provision for the manner in which such a claim as the present must be approached.

18.     Section 120(1) and (3) provide as follows:

“(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

…

(3)  In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused       disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”

19. The Act effectively imposes an onus of disproof beyond reasonable doubt once a reasonable hypothesis for causation by war service is raised by the evidence.

20.     In Bushell v Repatriation Commission (1992) 175 CLR 408 at 414, Mason CJ, Deane and McHugh JJ said:

“The material will raise a reasonable hypothesis within the meaning of
s.120(3) if the material points to some fact or facts ("the raised facts")
which support the hypothesis and if the hypothesis can be regarded as
reasonable if the raised facts are true.”

See Creyke and Sutherland at 413:

“In order for the material to raise a reasonable hypothesis.   It is not sufficient that the material raise a mere possibility.”

21.     On the basis of the findings in the decision of the High Court in Bushell, the Tribunal finds that the material raised by Dr Taylor establishes a reasonable hypothesis.   The Tribunal must be satisfied beyond reasonable doubt that there is not sufficient ground for determining that the disease was a war-caused disease.

22.     Written Evidence before the Tribunal by Dr Siejka and Dr Taylor did not disclose a causal relationship between the applicant’s disequilibrium symptoms and his accepted hearing loss.

23.     In a letter dated 7 August 2003, Dr Taylor wrote inter alia:

“Unfortunately I am unaware of what constituted his service in the Australian Army.  Suffice to say, if his sensory-neural hearing loss is considered a work-related or service related condition, then I suspect some his disequilibrium is directly related to this.

Additionally, as you know, he had a motor vehicle accident in the late 70’s where he was unconscious for some time.   If this was in the course of this service, I think this would also add up as another factor relating to worsening balance, as he almost certainly sustained a significant head injury considering he was unconscious for some 5 minutes.

Therefore on the basis of this information and supposition that both these episodes were related to his service, at least a significant component of his disability could be attributed to his service history.  If neither of these events were service-related, then I would find it very difficult to relate his disequilibrium to a service-based problem unless there was something very unusual in his service history such as exposure to chemicals, other multiple head injuries or significant concussive injuries which may result if vestibular dysfunction.”

24.     On the preponderance of medical evidence before the Tribunal, the Tribunal finds that the cause of the disease of disequilibrium is the accident suffered by the applicant in 1979 and was not caused by the applicant’s military service.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  10 March 2004
Date of Decision  22 June 2004
Counsel for the Applicant         Mr Raymond Benson
Solicitor for the Applicant          Ogilvie Jennings
Counsel for the Respondent     Mr Michael Castle
Solicitor for the Respondent     Department of Veterans' Affairs