Forster and Repatriation Commission

Case [2014] AATA 91

[2014] AATA 91 

Division VETERANS' APPEALS DIVISION

File Number

2012/3355

Re

Kevin Forster

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION  

Tribunal

Deputy President PE Hack SC
Date 25 February 2014  
Place Brisbane

The decision under review is affirmed.

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Deputy President PE Hack SC

Catchwords

VETERANS’ AFFAIRS – veterans’ entitlements – abuse suffered during apprenticeship – whether defence caused –  posttraumatic stress disorder – whether category 1A stressor – whether a serious physical attack or assault – whether torture – alcohol dependence – severe child abuse – whether senior apprentices ‘care providers’ – whether serious emotional, psychological or sexual harm – clinical onset- hypertension.

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 70(1), 70(5), 120B(3)

Cases

Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Re Robertson & Repatriation Commission [1998] AATA 127

Lees v Repatriation Commission (2002) 125 FCR 331

Secondary Materials

Statement of Principles concerning Posttraumatic Stress Disorder No. 6 of 2008
Statement of Principles concerning Posttraumatic Stress Disorder No. 2 of 2009
Revocation and Determination of Statement of Principles concerning Hypertension No. 36 of 2003
Amendment Statement of Principles concerning Hypertension No 12 of 2008
Statement of Principles concerning Hypertension No. 64 of 2013

REASONS FOR DECISION

Deputy President PE Hack SC

Introduction

  1. The applicant, Mr Kevin Forster, joined the Australian Regular Army as a junior apprentice in January 1973.  He was then some five months short of his 16th birthday.  He says that, as a result of abuse and bullying of him that occurred during his training, he now suffers from posttraumatic stress disorder, alcohol dependence and hypertension.  He made a claim for a disability pension pursuant to the Veterans' Entitlements Act 1986 (Cth) (the VEA) in respect of those, and other, conditions. The respondent, the Repatriation Commission, rejected his claim so far as it related to these three conditions.

  2. The Commission's decision in relation to the aspect of the claim subject of these proceedings was affirmed by the Veterans' Review Board.

  3. Mr Forster seeks a review of the decision.

  4. For the reasons that follow I have come to the conclusion that the Commission's decision was correct and should be affirmed.

    Factual background

  5. Mr Forster served in the Army from January 1973 to November 1978.  He commenced his apprenticeship training at the Army Apprentices School at Balcombe, Victoria.  He initially commenced training as a radio mechanic however his trade results were so poor that he changed trades to motor mechanic.  On arrival at Balcombe he shared quarters with a more senior apprentice however that apprentice’s service with the Army was terminated a short time after Mr Forster's arrival.  Mr Forster gave evidence about the abuse and bullying that he says he was subject to whilst at Balcombe.  I refer to that evidence in greater detail below.

  6. After completing his trade training as a mechanic Mr Forster was posted to Broadmeadows, Victoria and then to 3RAR, based at Woodside, South Australia.  He was ultimately discharged in November 1978 for being absent without leave.

  7. Mr Forster's claim for a…

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Details
AGLC
Forster and Repatriation Commission [2014] AATA 91
Case
[2014] AATA 91
Decision Date

CaseChat Overview and Summary

In the case of Forster v Repatriation Commission, the applicant, Mr Forster, sought a disability pension pursuant to the Veterans' Entitlements Act 1986 (Cth). He claimed that his service in the Army caused his alcohol abuse/dependence, hypertension, atherosclerotic peripheral vascular disease, and hearing loss with tinnitus. The Repatriation Commission initially rejected his claims, but the Veterans' Review Board set aside the decision on atherosclerotic peripheral vascular disease and determined it to be defence-caused. The remaining claims were affirmed. The central legal issue before the court was whether Mr Forster's claimed conditions were defence-caused injuries or diseases. This required the court to determine if the claimed conditions arose out of, or were attributable to, his defence service.

The court found that the evidence did not support Mr Forster's claims. His evidence was deemed unreliable due to discrepancies and inconsistencies, such as him altering his blood pressure readings and only recalling a significant scar after being pressed during cross-examination. The court concluded that there was no reasonable satisfaction that Mr Forster's claimed conditions were defence-caused. Consequently, the court affirmed the Commission's decision to reject the claims for a disability pension for the conditions of posttraumatic stress disorder, hypertension, and alcohol dependence.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow I have come to the conclusion that the Commission's decision was correct and should be affirmed.Factual background Mr Forster served in the Army from January 1973 to November 1978. He commenced his apprenticeship training at the Army Apprentices School at Balcombe, Victoria. He initially commenced training as a radio mechanic however his trade results were so poor that he changed trades to motor mechanic. On arrival at Balcombe he shared quarters with a more senior apprentice however that apprentice’s service with the Army was terminated a short time after Mr Forster's arrival. Mr Forster gave evidence about the abuse and bullying that he says he was subject to whilst at Balcombe. I refer to that evidence in greater detail below. After completing his trade training as a mechanic Mr Forster was posted to Broadmeadows, Victoria and then to 3RAR, based at Woodside, South Australia. He was ultimately discharged in November 1978 for being absent without leave. Mr Forster's claim for a disability pension pursuant to the VEA was lodged in May 2011. The disabilities identified in his claim were alcohol abuse/dependence (in remission) (but diagnosed by his medical practitioner as posttraumatic stress disorder), hypertension, atherosclerotic peripheral vascular disease (both legs) and hearing loss with tinnitus. On 21 September 2011 a delegate of the Commission determined that hearing loss and tinnitus were service related but that the other claimed conditions were not. In particular, the delegate determined that the material did not permit a diagnosis of posttraumatic stress disorder. That decision was reviewed by the Veterans' Review Board. On 7 February 2012 the Board set aside the Commission's decision in relation to atherosclerotic peripheral vascular disease and determined it to be a defence-caused disease. It otherwise affirmed the Commission’s decision regarding hypertension, posttraumatic stress disorder and alcohol dependence (in remission).The statutory setting By virtue of s 70(1) of the VEA the Commonwealth is liable to pay a pension by way of compensation to a "member of the Forces" who was incapacitated from a defence-caused injury or a defence-caused disease. There is no doubt that Mr Forster was a member of the Forces. The issue in the present case is whether the conditions which he says affect him are defence-caused injuries or defence-caused diseases. It is sufficient for present purposes to say that the effect of s 70(5) of the VEA is that an injury suffered, or a disease contracted, by a member of the Forces is taken to be a defence-caused injury or a defence-caused disease if,(a)the… injury or disease, as the case may be, arose out of, or was attributable to, any defence service… of the member.In determining such questions the Commission (and the Tribunal) is bound to decide matters "to its reasonable satisfaction".[1][1]See s 120(4), VEA. The determination of reasonable satisfaction is dealt with by s 120B(3) in these terms:(3)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); or(ii)a determination of the Commission under subsection 180A(3);that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

Evidence

Evidence Before The Court

The Repatriation Medical Authority has promulgated Statements of Principles for each of the three conditions claimed by Mr Forster. I will deal with the precise terms of those Statements of Principles by reference to the particular conditions and the way in which his case was put when considering the particular claims.Mr Forster’s evidence Mr Forster provided a detailed statement to the Commission in May 2011[2] and compiled a further statement for the purposes of these proceedings.[3] In addition, he gave oral evidence in the course of the hearing. His evidence, and that of the other witnesses whose statements were tendered,[4] satisfies me that there was what might be described as a culture of bullying at Balcombe during Mr Forster's service there. Senior apprentices, that is, those in the second or third year of service, would routinely bully or harass first-year apprentices. Indeed, in the first few months of Mr Forster's service an incident occurred that led to four senior apprentices being summarily discharged from the Army over an incident that left one junior apprentice in hospital with what a contemporary newspaper report described as "a broken nose and other facial injuries". It is of note that the four discharged apprentices, in another newspaper report, described how they had earlier been treated in a similar manner when they were first-year apprentices.[5][2]Exhibit 1, pages 48 – 53. [3]Exhibit 9.[4]Exhibits 2, 3, 4 and 5.[5] Exhibit 8. The real issue in the present case is the extent to which Mr Forster was the victim of abuse and the extent of it. I must say at the outset that I have considerable concerns about the reliability of Mr Forster's evidence. One matter, in particular, is concerning. At a time when Mr Forster was in possession of his medical records from the time of his service he had occasion to provide information to his general practitioner to permit that doctor to provide a report supporting Mr Forster's claim that hypertension was defence-caused. He told the doctor that he had a blood pressure of 140/90 at the age of 19. The Army medical record[6] clearly showed 138/78. A diastolic reading of at least equal to 90 mmHg satisfied the clinical definition of hypertension in the hypertension Statement of Principles, a diastolic reading of 78 mmHg did not. Mr Forster's explanation for telling the doctor the higher figures was that "it sounds better".[7][6]Exhibit 1, page 15.[7]Transcript, page 54, lines 40 – 41. There were other matters that concerned me. In the course of cross-examination, the Commissioner’s representative, Mr Williams asked Mr Forster whether he suffered any injuries during the time of the bullying he alleged. Mr Forster initially answered, non-responsively, by referring to cuts and bruises that "happened to everyone". When pressed for his experience he said he had suffered cuts and bruises. The following passage of evidence is illuminating[8]: So cuts and bruises? --- Cuts and bruises on several occasions – on more than one occasion.MR WILLIAMS: And did you report those at all?--- No, Mr Williams. Did you treat them at all? Did you – did they require treatment?--- They probably required some form of treatment. You'd go to the showers, get a paper towel. As a matter of fact I have a scar over my right eye just to prove it and that should have been stitched.Okay. Is that the only cut that you point to or that you can recall?--- Yes, Mr Williams. This is the only one that’s visibleOkay. Are there any other that you remember?--- I remember the bruising and a walking and limping for a few days or going to sport and going to stretch and go, "Ouch" and then go, "That's from the other night."Okay. Did these bruises prevent you from doing your apprenticeship training?--- No, Mr Williams.It seems to me to be remarkable that Mr Forster had not earlier mentioned this visible scar, particularly in his detailed statement from May 2011. Equally, it seems to be remarkable that Mr Forster claimed that cross-examination was "triggering" further memories of violent incidents, albeit to other apprentices.[9][8]Transcript page 50, lines 4-23.[9]Transcript page 52, lines 3-4 & 43-45.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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