Fogarty and Repatriation Commission - [2000] AATA 739

DECISION AND REASONS FOR DECISION [2000] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1153

VETERANS'     APPEALS     DIVISION     )
           Re      WILLIAM FRANCIS FOGARTY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Associate Professor J. Maynard, Member

Date24 August 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – Ischaemic heart disease – psychoactive substance abuse or dependence – generalised anxiety disorder – naval service – stress – alcohol consumption – passive smoking – whether hypertension – decision affirmed.
Words and Phrases – "Hypertension", "Ischaemic Heart Disease", "Generalised Anxiety Disorder", "Stressful event", "Psychoactive substance abuse or dependence".
Veterans' Entitlements Act 1986, ss. 9, 120A, 126, 196B
Statement of Principles Instrument Nos. 85 of 1995 (Ischaemic Heart Disease); 48 of 1994 (Generalised Anxiety Disorder); 83 of 1995 (Hypertension); 5 of 1994 (Psychoactive Substance Abuse or Dependence)
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Deledio (1998) 49 ALD 1993
Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999

REASONS FOR DECISION

24 August 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Associate Professor J. Maynard, Member
Introduction

This is an application by Mr William Francis Fogarty, for review of the decision of the respondent dated 4 October 1995, affirmed by the Veterans' Review Board ("VRB") on 7 September 1998, that ischaemic heart disease ("IHD") and generalised anxiety disorder ("GAD") are not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
Representation
At the hearing before this Tribunal Mr Fogarty was represented by his solicitor Mr D. De Marchi. Ms T. Chant, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also received in evidence during the hearing.
Witnesses
During the hearing evidence was given by:

Mr Fogarty;
Dr E.S. Cole; and
Dr B.M. Kenny

Dr Cole and Dr Kenny are Consulting Psychiatrists.
Facts Not In Dispute
A number of facts relevant to this matter are not in dispute:
·     Mr Fogarty was born on 1 June 1922;
·     He served in the Royal Australian Navy from 30 September 1940 to 4 January 1946;
· His period of service in the Navy constitutes "eligible war service" as defined in the Act;
· Because Mr Fogarty served in HMA ships in South-West Pacific waters, the whole of his service also constitutes "operational service" as defined in the Act;
·     Mr Fogarty has the following disabilities accepted as war-caused:
·     Left Antritis
·     Chronic Bronchitis
·     Sleep Apnoea
·     He…

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 Fogarty and Repatriation Commission

Details

AGLC: Fogarty and Repatriation Commission [2000] AATA 739
Case: [2000] AATA 739
Decision Date: 24 August 2000

CaseChat Overview and Summary

In the case of Fogarty and Repatriation Commission, the Tribunal was tasked with determining whether Mr Fogarty's ischaemic heart disease (IHD) and generalised anxiety disorder (GAD) were war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986. Mr Fogarty contended that his service in the Royal Australian Navy during World War II contributed to the development of these conditions and that he was therefore entitled to an Extreme Disablement Adjustment (EDA) to his pension. The Tribunal needed to examine the evidence and assess whether Mr Fogarty's conditions were reasonably connected to his war service.

The legal issues involved assessing the standard of proof required under the Act to establish a war-caused condition and determining if Mr Fogarty's IHD and GAD met this standard. The Act requires the Commission to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that a disease was not war-caused, if a reasonable hypothesis connecting the disease with war service can be established. The Tribunal considered the evidence provided by Mr Fogarty, including his history of alcohol consumption and exposure to passive smoking, as well as the stressful conditions he experienced during his naval service.

After reviewing the evidence, the Tribunal concluded that while Mr Fogarty experienced stressful service in the Navy, he did not develop a general adaptation syndrome (GAP) as a result of his service. The Tribunal found that Mr Fogarty's own evidence indicated he had a long and happy family life and a successful career post-service, which suggested his service did not cause his IHD and GAD. Consequently, the Tribunal affirmed the decision under review, maintaining Mr Fogarty's pension at 80 per cent of the General Rate.

The final orders of the Tribunal were that the decision of the Repatriation Commission was affirmed, and Mr Fogarty's pension would remain at 80 per cent of the General Rate. The Tribunal's decision was based on the evidence presented and the application of the relevant statutory provisions and case law.

Orders

Orders of the court

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Background

Background to the litigation

Dr Cole and Dr Kenny are Consulting Psychiatrists.Facts Not In Dispute A number of facts relevant to this matter are not in dispute:· Mr Fogarty was born on 1 June 1922;· He served in the Royal Australian Navy from 30 September 1940 to 4 January 1946;· His period of service in the Navy constitutes "eligible war service" as defined in the Act;· Because Mr Fogarty served in HMA ships in South-West Pacific waters, the whole of his service also constitutes "operational service" as defined in the Act;· Mr Fogarty has the following disabilities accepted as war-caused:· Left Antritis· Chronic Bronchitis· Sleep Apnoea· He is currently in receipt of pension at 80 per cent of the General Rate. The issues before the Tribunal are:(a)Whether IHD and GAD are war-caused within the meaning of section 9 of the Act;(b)In the event of the Tribunal determining that either or both disabilities are war-caused, what is the appropriate rate of pension? It is Mr Fogarty's contention that IHD and GAD are war-caused and that, as a consequence of the acceptance of those disabilities, he would be eligible for the Extreme Disablement Adjustment ("EDA") to his General Rate pension, pursuant to section 22 of the Act.Standard of proof The standard of proof in determining the issue of causation in respect of Mr Fogarty's service is that which is provided in subsections 120(1) and 120(3) of the Act. Those subsections state as follows:"120. (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." In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ said:"The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."

Evidence

Evidence Before The Court

The respondent concedes that Mr Fogarty was hypertensive before the clinical onset of IHD in 1994.Evidence Mr Fogarty rendered two written statements for the purposes of these proceedings. The first statement is dated 6 August 1999 and provides a history of his consumption of alcohol and his exposure to passive smoking (Exhibit A3). The statement reads as follows:"ALCOHOL HISTORY1.I served in the Royal Australian Navy from 30 September 1940, to 4 January 1946. I served on board ships in South-West Pacific waters, and the whole of my service constitutes operational service.2.I joined the Navy when I was 18 years of age, and I was never a drinker prior to joining the Navy. When I was at Cape Otway Signal Station, when contractors were building a radar station, beer was brought in and this was the first time I was introduced to beer, and I became intoxicated for the first time. I was then about 18½ years of age.3.Later on I was on the examination vessel, S.S. Victoria. We would identify and board ships outside the 3 mile limit, this was for a fortnight at a time at sea. We would then be transferred to the depot for further instructions or relieving duties and would have access to alcohol then. I would routinely drink about 8 beers approximately every second day.4.After discharge, I would meet friends at the hotel every Friday night, and would drink 8 or more glasses of beer per night. I would drink more on social occasions. I wanted to drink more but I was newly married and could not afford it. But I would drink more when an opportunity arose.5.I increased my drinking a few years later when in 1957 I was drinking 4 glasses of beer per day, and this is in my records. On some occasions I would increase this quantity to 6-8 glasses of beer per day, and more on weekends and this pattern continued until 1988, when I was experiencing major health problems.6.I was diagnosed by Dr Cass as having high blood pressure in the early 1960's and have been on hypertensive medication since this time.7.My current Doctor is Dr Lee, and he has been treating me since 1985, including treatment for "long-standing hypertension". The condition confirmed damage to the heart area due to "long-standing hypertension" by Heart Specialist, Peter Skillington in official report of operation.8.The conditions on board the minesweepers and destroyers were very stressful and horrendous, especially when I experienced kamikaze attacks whilst screening the aircraft carrier "Formidable", both ships were hit twice on separate occasions. I lost some friends during these attacks, although my ship experienced no direct hits, some were close. The stress was relieved by drinking alcohol with my mates when on leave.PASSIVE SMOKING1.I was in the Navy for over 5 years. On board destroyers, there would be 40 men in a room approximately 50 x 30 feet. This was known as the 'Mess' and we were in there 14 hours a day. We ate and slept in there, and recreation included smoking. 90% of these men smoked, there was always a smoke haze visible continually. It was not practical to open portholes at sea. The only access to the lower deck 'Mess' was through a stairway approximately 4' x 3' opening.2.Minesweepers would sweep daybreak to sunset. The ship would lay to inside the Heads, and smoking was the main occupation prior to bedtime.3.Most of the men smoked because cigarettes were extremely cheap, and in welfare parcels. Destroyers, in the dying weeks of the war, received a bottle of beer a man per week, supplied by the Navy."

Decision

Reasons for decision

While we accept that Mr Fogarty experienced stressful service in the Navy, we have, however, formed the opinion that he never developed a GAP as a result of any aspect of his service. Indeed, his own evidence makes it very clear that since his naval service, Mr Fogarty has enjoyed not only a long and happy family life but also a most successful and rewarding working life, particularly while at the Trades Hall and then later in politics.Decision The decision of the Tribunal will be that the decision under review is affirmed. Mr Fogarty's pension will therefore remain at 80 per cent of the General Rate.I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of:Commodore B.G. Gibbs, AM, RAN (Retd), Senior MemberMr A. Argent, MemberAssociate Professor J. Maynard, MemberSigned:..................................................................................... Personal AssistantDate/s of Hearing 5/7/2000 Date of Decision 24/8/2000Counsel for the Applicant Mr D. De Marchi Solicitor for the Applicant De Marchi & Associates Counsel for the Respondent Ms T. Chant Solicitor for the Respondent Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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