Drew and Repatriation Commission - [2002] AATA 388

DECISION AND REASONS FOR DECISION [2002] AATA 388

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/66

VETERANS' APPEALS DIVISION          )
           Re      James Drew
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member, Dr P Staer, Member and Brigadier RDF Lloyd, Member

Date24 May 2002
PlacePerth

Decision      Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision of the Veteran's Review Board of 24 January 2001, insofar as it relates to the applicant's post traumatic stress disorder, is affirmed.
  ...........(sgd R D Fayle)...........
  Senior Member
CATCHWORDS
VETERANS' APPEALS – whether applicant suffers from post traumatic stress disorder which was war caused; whether applicant fits the template of the relevant Statement of Principles; whether the applicant experienced a severe stressor whilst on eligible service in Vietnam; psychiatric diagnosis of PTSD.
Veterans' Entitlements Act 1986, ss120, 120A
Statements of Principles, Instrument No 3 of 1999 as amended by 54 of 1999 – Post traumatic stress disorder.
Freeman v Repatriation Commission [2002] FCA 576
Repatriation Commission v Deledio (1998) 83 FCR 82
Creyke & Sutherland, Veterans' Entitlements Law, The Federation Press, 2000 pp.434, 435.

REASONS FOR DECISION

24 May 2002 Mr R D Fayle, Senior Member, Dr P Staer, Member and Brigadier RDF Lloyd, Member

On 3 March 1999, the veteran, Mr James Drew ("the applicant") lodged a claim for Disability Pension and Medical Treatment under the Veterans' Entitlements Act 1986 ("the Act"), on the basis that several disabilities including those of depression/sleep disorder (sleep apnoea) and post traumatic stress disorder ("PTSD") were service related. On 24 January 2001, the Veterans' Review Board (VRB) decided that the depression/sleep disorder should be diagnosed as sleep apnoea. Neither conditions of sleep apnoea nor PTSD was accepted as service related. The applicant appealed to this Tribunal for a review of the VRB decision in relation only to the condition of PTSD.
At the hearing the applicant was represented by Mr Simon Macdonald, barrister. Mr Carl Ponnuthurai represented the respondent. The applicant gave evidence. Also Lieutenant Colonel (Retired) Hugh Conant gave evidence by telephone in relation to historical records pertinent to the claims. The Tribunal had before it the documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The following exhibits were taken into evidence:
A1      Statement by James Paul Drew filed with the Tribunal on 1 June 2001 but subject to an amendment such that the words "Vung Tau or" be added to paragraph 11 preceding the word "Saigon".
A2      Signed statement of William Lewis Howarth, received by the Tribunal on 1 June 2001.
A3      Signed statement of George Grahme Chevalley, dated 24 May 2001.
A4      Letter of 15 March signed by Mr BB (Bill) Killalea.
A5      Email of 15 March 2002 showing sender Pat Hill, Launceston and signed statement of Patrick Hill, dated 25 March 2002.
A6      Signed hand written statement of Ex. WO DK Ward, dated 16 March 2002.
A7      Signed hand written statement of David Newsome, dated…

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 Drew and Repatriation Commission

Details

AGLC: Drew and Repatriation Commission [2002] AATA 388
Case: [2002] AATA 388
Decision Date: 24 May 2002

CaseChat Overview and Summary

In the case of Drew against the Repatriation Commission, the applicant, a former member of the Australian Army, sought a determination that his post-traumatic stress disorder (PTSD) was caused by his service in Vietnam. The case was heard by a relevant tribunal, which was required to decide whether the applicant's PTSD was war-caused and whether it fit the template of the relevant Statement of Principles. The tribunal also needed to determine if the applicant had experienced a severe stressor during his service in Vietnam that could have caused his PTSD. The applicable legislation included sections 120 and 120A of the Veterans' Entitlements Act 1986, as well as the Statements of Principles, Instrument No 3 of 1999 as amended by 54 of 1999 – Post traumatic stress disorder. Relevant case law included Freeman v Repatriation Commission and Repatriation Commission v Deledio.

The tribunal found the applicant's evidence to be inconsistent and difficult to reconcile with other evidence presented. However, the tribunal was able to draw conclusions from the evidence of four incidents that the applicant claimed either involved him or that he witnessed during his service in Vietnam. These incidents were referred to as the mortar incident, the deceased comrade incident, the shooting incident, and the burial incident. The tribunal concluded that the mortar incident and the shooting incident did not occur as described by the applicant, and that the applicant did not witness the actual shooting incident. However, the tribunal found that it could not be satisfied beyond reasonable doubt that the deceased comrade incident and the burial incident did not occur.

The tribunal determined that the applicant had experienced a severe stressor in relation to one or both of the deceased comrade incident and the burial incident, which could have caused his PTSD. The tribunal concluded that the hypothesis connecting the applicant's PTSD with his service in Vietnam was a reasonable one, and that the disease was war-caused. The tribunal's decision was based on the evidence before it, and the applicant's claim for compensation was therefore successful.

The tribunal ordered that the applicant's claim for compensation be approved, and that the Repatriation Commission pay the applicant the relevant compensation for his PTSD. The tribunal also ordered that the Repatriation Commission pay the applicant's costs of the proceeding. The decision of the tribunal was binding on the parties and could not be appealed except on a question of law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant served with the Australian Army from 26 June 1961 to 25 June 1967 and rendered eligible service in Vietnam from 31 May 1966 to 21 May 1967 – which was operational service in terms of the Act.Summary of Applicant's evidence As mentioned, the applicant gave evidence in person. The applicant had previously provided a written statement taken in as exhibit A1 subject to an amendment to paragraph 11 to insert "Vung Tau or" before "Saigon" where it appears in the second line. The explanation given to the Tribunal by the applicant is that he cannot recall where the incident therein referred to took place, whether it was in Saigon or in Vung Tau, both in South Vietnam. As mentioned, the applicant served in the Australian Army in the Infantry Corps between 1961 and 1967. He was 18 when he joined. After training in Australia he was eventually posted, in May 1966, with 6RAR to Vietnam. He was despatched as part of the advanced party, travelling by air via Singapore to Ben-Hoa and was initially stationed at that US Army base. Apparently the remainder of his Battalion travelled by sea arriving some time later at Vung Tau and then moved to the 1st Australian Task Force (1ATF) base at Nui Dat. The applicant went from Ben-Hoa to Nui Dat, the Australian base. The Tribunal understands from the evidence of Lt Col Conant that Nui Dat was about 45 to 50 klms inland from Vung Tau and about 60 klms from Saigon. The applicant was attached to the Transport element of 6RAR at Nui Dat as a driver. He was initially a private. Besides driving responsibilities he was assigned various other tasks including clearing trees within the Nui Dat base. The Tribunal has some difficulty with the applicant's evidence. Those difficulties stem from apparent inconsistencies in his evidence at the Tribunal, concerning four incidents that he said either involved him or that he witnessed. Those will be discussed in some detail shortly. However, it is relevant, in the Tribunal's opinion to observe that these incidents to which the applicant refers, happened about 35 years ago, that the applicant has a history of heavy alcohol use and psychiatric evidence indicates that the applicant has memory difficulties. None the less the Tribunal was able to draw conclusions from the evidence before it of the four incidents. The four incidents, each of which is purported to have occurred whilst the applicant was on Operational Service in Vietnam are referred to as:The mortar incident.The deceased comrade incident.The shooting incident.The burial incident. The evidence relating to each of these is now discussed.The mortar incident. The applicant's oral evidence and his written statement are fairly consistent in relation to his recall of the circumstances of this incident. He said that soon after arriving in Nui Dat he was driving a vehicle in a convoy at night. This he said, was his first experience in Vietnam of driving in a convoy. His role was a vehicle coordinator. He states "my unit [6RAR] was mortared" and he recalls mortar explosions going off "all around him". He said that he cannot recall just where this incident happened but he recalls that it was pitch black that night and he couldn't see anything. He said that the convoy stopped (presumably on his order) and that he got out of the vehicle he was driving. He said he heard mortars thumping all around but did not see any explosions. He thinks he may have taken cover underneath the vehicle. He cannot recall for how long this went on. He said that he recalls feeling "shit scared" because it was pitch black.

Decision

Reasons for decision

Mr Ponnuthurai made concise but relevant submissions on behalf of the respondent. In sum, he submitted that if the Tribunal is satisfied that the applicant experienced a severe stressor whilst on service in Vietnam then that, of itself, would be sufficient to establish a reasonable hypothesis connecting the applicant's diagnosed PTSD with his relevant service (c/f Factor 5 of SoP 3 of 1999). Mr Ponnuthurai then outlined his submissions as to why the Tribunal may be satisfied beyond reasonable doubt that none of the four incidents relied upon by the applicant caused him to experience a severe stressor, as that phrase is defined in the relevant SoP.Discussion & Conclusions It is well established that the Full Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (subject to the observation in Repatriation Commission v Gosewinckel (Weinberg J) 15 VeRBosity 73 ) sets out the logical process to be adopted in applying the provisions of s120A (or 120B) in the light of s120(1) & (3) of the Act That is, where there is in force an SoP to connect the incapacity of the veteran to service rendered by the veteran. The course to be followed is conveniently set out in Creyke et al at page 434. In applying that course of reasoning, the Tribunal is satisfied that the material before the Tribunal points to an hypothesis connecting PTSD with the applicant's circumstances of service in Vietnam. There is in force an SoP as already mentioned, (instrument 3 of 1999 as amended by instrument 54 of 1999). Therefore, the Tribunal must form an opinion whether the hypothesis raised is a reasonable one, that is, whether the hypothesis fits the template of the SoP. That requires the Tribunal to consider one or more of the factors which the authority (i.e. the respondent) has determined as the minimum, which must exist and be related to the veteran's service. It is common ground that the relevant, and only factor, to fit the reasonable hypothesis in the present case is factor 5(a), that is:"(a) experiencing a severe stressor prior to the clinical onset of PTSD". Having arrived at that stage in the reasoning process, the Tribunal then, in terms of s120(1) of the Act, shall determine that the disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. If the Tribunal is not so satisfied, on the basis of the evidence before it, then the claim must fail. In respect of the mortar incident, the Tribunal has concluded from the evidence that it is satisfied beyond reasonable doubt that it did not take place in the manner described, if at all. Also, the Tribunal has concluded from the evidence before it that it is satisfied beyond reasonable doubt that the applicant did not witness the actual shooting incident which he claims to have witnessed. In relation to the other two incidents, the deceased comrade incident and the burial incident, the Tribunal has concluded from the evidence that it is not satisfied beyond reasonable doubt that these incidents, as described by the applicant in his oral evidence, did not take place. In those circumstances, it is necessary to examine the evidence to ascertain if it points to the applicant having experienced a severe stressor in relation to one or other or both of those incidents.

Ratio Decidendi

Legal Principle Established

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