Dougherty and Repatriation Commission (Veterans' entitlements) - [2019] AATA 706

Dougherty and Repatriation Commission (Veterans' entitlements) [2019] AATA 706 (16 April 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3532
Re:Brian Dougherty
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:16 April 2019
Place:Sydney

For the reasons set out below, the Tribunal:
(a)affirms the Reviewable Decision in relation to the alcohol use disorder;
(b)sets aside the Reviewable Decision in relation to the hypertension; and
(c)makes a decision in substitution that the Applicant suffers from hypertension that was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

.........................[SGD]...............................................
Senior Member Linda Kirk
CATCHWORDS
VETERANS’ AFFAIRS – disability pension claim – alcohol use disorder – hypertension – Deledio Principles – where hypothesis for claimed conditions consistent with templates in relevant Statement of Principles– whether claimed conditions were war-caused – where alcohol use disorder not war-caused – where hypertension war-caused – decision set aside in part
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Benjamin v Repatriation Commission (2001) 64 ALD 411
Blain v Repatriation Commission [2017] FCA 114
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Brackin and Repatriation Commission (Veterans' entitlements) [2018] AATA 4584
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517; [1987] FCA 242
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FAFC 23; (2005) 85 ALD 1
Lees v Repatriation Commission (2002) 125 FCR 331
McLean v Repatriation Commission [2001] FCA 243
Re Parotte and Repatriation Commission [2004] AATA 536
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Warren (2008) 167 FCR 511
Stevens v Repatriation Commission [2018] FCA 1866
SECONDARY MATERIALS
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009 for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004
Statement of Principles concerning Hypertension No. 63 of 2013 for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004
REASONS FOR DECISION
Senior Member Linda Kirk
16 April 2019
INTRODUCTION AND BACKGROUND

Mr Brian Dougherty (‘the Applicant’) was born in 1949 and is 69 years old. He was conscripted into the Australian Army (‘the Army’) on 22 April 1970 when he was 20 years of age and served in the Army until his discharge on 9 December 1971.[1]
[1] T3.
The Applicant rendered operational service in South Vietnam from 17 February 1971 to 7 October 1971.[2]

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: [2019] AATA 706
Decision Date: 16 April 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Mr Dougherty, for a disability pension under the *Veterans’ Entitlements Act 1986* (Cth) for conditions including alcohol use disorder and hypertension. The Repatriation Commission had made a decision that these conditions were not war-caused. The Applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the Applicant's alcohol use disorder and hypertension were war-caused within the meaning of the Act. This required the Tribunal to consider the evidence presented by the Applicant regarding his service history and the development of these conditions, and to apply the relevant Statements of Principles and established legal principles, including the "Deledio principles," to determine if the necessary causal link to his service was established.

The Tribunal considered the Applicant's evidence concerning his drinking habits before, during, and after his national service. It noted that while the "Deledio principles" provide a useful methodology for decision-makers, they are not to be applied as a legislative mandate. The Tribunal found that the Applicant's alcohol use disorder was not war-caused, as the evidence did not establish a sufficient link between his service and the onset or aggravation of this condition. However, regarding hypertension, the Tribunal was not satisfied beyond reasonable doubt that it was not war-caused, and therefore set aside the Reviewable Decision in relation to hypertension.

Accordingly, the Tribunal affirmed the Reviewable Decision in relation to the alcohol use disorder, but set aside the Reviewable Decision concerning hypertension. The Tribunal substituted a decision that the Applicant suffers from hypertension that was war-caused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Federal Court has emphasised that strict reliance on the ‘Deledio principles’ as if they were a legislative mandate would be an error: Hill v Repatriation Commission [2005] FAFC 23; (2005) 85 ALD 1 at 16 – 17. However, as Deputy President Sosso observed in Brackin, ‘the Deledio ‘methodology’ is a useful tool in guiding decision-makers through the byzantine maze of veterans’ affairs law and assists in preventing the decision maker falling into error’ at [41] citing Logan J in Blain v Repatriation Commission [2017] FCA 114 at [9].APPLICANT’S EVIDENCE The Applicant provided a statement dated 3 July 2017, the relevant sections of which are extracted under the sub-headings below. The Applicant provided further information during his oral evidence at the hearing as detailed below.Employment and drinking habits prior to service Prior to his service, the Applicant was employed by the Bank of New South Wales as a junior bank teller.[10] [10] Transcript of proceedings, 3 December 2018, p10-11. In his written statement, the Applicant described his social and drinking habits prior to being conscripted into the Army:I never drank alcohol until after starting work in my banking career in December 1966. From that time until I commenced my national service I drank on an irregular basis socially.My drinking on that basis would have been no more than 2 or 3 beers.In that time I did not drink alcohol on a daily or even a weekly basis. My drinking of alcohol was limited to social occasions or following my involvement in active sporting events. During that time I did not exclusively drink alcohol. Soft drinks and water were the main items in my drinks menu.[11][11] Exhibit A1, paragraph 15. See further Transcript of proceedings, 3 December 2018, p11.Pre-deployment training and drinking habits The Applicant described in his statement the training he received in Australia following his conscription and his drinking habits prior to his deployment to Vietnam:At the time around my 20th birthday I was conscripted to serve 2 years national service in the Australian Army. I completed basic training at Singleton in New South Wales, corps training at Puckapunyal in Victoria and then was posted to 186 Air Dispatch Coy at Wallgrove in Sydney before my posting to Detachment 176 Air Dispatch Coy at Nui Dat, South Vietnam in February, 1971. During the course of my army service my drinking habits changed.Our basic training course at Singleton was intense, both physically and mentally, and lasted for 10 weeks. At first we were not permitted to consume any alcohol at all. From memory this was for a period of approximately 3 to 4 weeks. We were then allowed access to the canteen on a daily basis each evening and allowed to purchase beer for consumption in the canteen only. All facets of our training seemed to want us to do everything together. We were bonding as ‘a unit’ by this stage of our training, and the normal activity was to consume 3 to 4 beers during the limited time available to us each evening.Again, from memory, most if not all members of our training section and platoon partook in this activity each day. As our 10 week course unfolded we were allowed some weekend leave locally, plus one weekend when we were allowed to visit our homes individually. During those few weekend periods our leave consisted of leaving the army base and visiting the nearby town of Singleton. Almost all of the time on these visits was used by visiting a local hotel and consuming alcohol. My alcohol consumption was limited to beer. During these times my consumption would have been in excess of the 3 to 4 beers mentioned above.Following completion of our basic training, we were allocated different corps in the army to be trained to fulfil more specific roles during our service. In my case I was transferred to Puckapunyal in Victoria for training initially as a driver then more specifically for a role as an Air Dispatcher. Puckapunyal is located nearby the town of Seymour approximately an hour or so from Melbourne. This training was to be completed over another 10 week period. It was not as physically intense as our basic training had been. But it was challenging enough, being completely different to what I had been used to as a young country bank officer. Our group now was not limited to National Servicemen just out of basic training. It also included regular soldiers transferring from one role or corps to another. We were all living still in a ‘barracks’ situation, although now were sharing a room with one or two other soldiers and not 15 others. During this training we had daily access to our canteen which sold beer. We visited this facility together on a daily basis during the term of our course. Once again here, I was probably drinking a minimum of 3 to 4 beers per day. We were allowed more liberal leave privileges now than during basic training. These involved either staying on the base or visiting nearby Seymour. Again, this involved similarities to the above Singleton visits and almost exclusively involved a visit to a local pub and extended drinking sessions. On several occasions we were allowed full weekend leave when we visited Melbourne. These visits involved an overnight stay, usually in a hotel. Once again, extended periods of time were spent during these leave periods when we drank alcohol. My alcohol drinking habits still mostly only included beer. Daily alcohol intake on these weekends easily exceeded the 3 to 4 beers daily during the week.By this time it was clear to me that daily drinking sessions after work was completed, was in fact considered the normal thing for soldiers to do.I completed this training course around September 1970 and was transferred to 186 Air Dispatch Coy and stationed on site at the unit's base in Wallgrove, Sydney. Our unit had some soldiers living on base as well as some who lived off base in nearby suburbs. All of us national servicemen resided on base. Once again, we had our own canteen where beer was available after work hours. Most of us who resided on base frequented our canteen and drank beer on a daily basis. Regular weekend leave was allowed and we visited the Sydney City and Kings Cross areas regularly. On these leave periods a large amount of time was spent in various hotels and clubs drinking various amounts and types (beer and spirits) of alcohol. During this time I would've been drinking at least 3 to 5 beers per day during the week and considerably more alcohol (including some spirits) on weekends. There was no opportunity to participate in organised sport or other recreation.Our unit was chosen to complete guard duty at Victoria Barracks. We were trained to complete particular drills which would be used during the week of our duty. Our guard contingent was split in two as we were on guard duty on a ‘day on - day off’ basis. I was among those chosen in the section which completed the Thursday Cenotaph Guard in Martin Place. We marched from Macquarie Street down Martin Place where we did some drills and stood guard in memory of previously fallen servicemen. Upon completion we marched back up Martin Place before being dismissed. It was during this ceremony we were abused and spat at by members of the so called ‘Save Our Sons’ movement. This consisted of mainly women purported to be mothers of national servicemen sent to Vietnam against their wishes. Little did they either know or care, that several of the diggers they abused that day were in fact young national servicemen who had, or soon would be, serving their country in the very same war. Just another incident for a young soldier to deal with that was not ‘in the instruction book’.None of us diggers knew whether we would be deployed overseas or just complete our national service at Wallgrove. It was not long before I was told I would be going to Vietnam some time after the New Year in 1971. I completed jungle training at Canungra in the Queensland Gold Coast hinterland area in preparation for my upcoming deployment to duties with Detachment 176 Air Dispatch Coy in South Vietnam. It was during this two week training course that I ‘celebrated’ my 21st birthday on 5 December 1970.[12][12] Exhibit A1, paragraphs 16-21.Deployment to and work and social activities in Vietnam

Decision

Reasons for decision

Accordingly, the Tribunal is not satisfied beyond reasonable doubt that there are sufficient grounds for making a determination that the Applicant’s hypertension is not war-caused.DECISION For the reasons set out above, the Tribunal:(d)affirms the Reviewable Decision in relation to the alcohol use disorder;(e)sets aside the Reviewable Decision in relation to the hypertension; and(f)makes a decision in substitution that the Applicant suffers from hypertension that was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

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