French and Repatriation Commission (Veterans' entitlements) - [2017] AATA 297

French and Repatriation Commission (Veterans' entitlements) [2017] AATA 297 (8 March 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/0972
Re:Brian French
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:8 March 2017
Place:Sydney

The reviewable decision, being the decision of the Repatriation Commission made 17 April 2014 refusing Mr French’s claim in respect of Generalised Anxiety Disorder, is affirmed.
....................................[sgd]....................................
Deputy President J W Constance
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 – service related-condition – war-caused injury – whether applicant rendered operational service – Statement of Principles – reasonable satisfaction – whether applicant suffered generalised anxiety disorder – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A, 120B
CASES

Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio [1998] FCA 391

SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)
REASONS FOR DECISION
Deputy President J W Constance
8 March 2017
A: INTRODUCTION

On 7 February 2013 Mr French made an application for Generalised Anxiety Disorder to be accepted as a service-related condition in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claimed he has suffered, and continues to suffer the condition arising out of service he rendered as a member of the Royal Australian Navy.
On 17 April 2014 the Repatriation Commission refused the claim.[1] This decision was affirmed by the Veterans’ Review Board on 16 December 2014.
[1] Exhibit R1 p.123.
Mr French has applied to the Tribunal to review the Commission’s decision.
For the reasons which follow the decisions under review will be affirmed.
B: BACKGROUND
Unless stated otherwise the following findings of fact are based on the evidence of Mr French.
Mr French joined the Royal Australian Navy on 4 January 1967 when he was 16 years old. Between 21 October 1970 and 16 October 1971 he made five trips into Vietnamese waters on board HMAS SYDNEY during the Vietnam War. During his service in the Navy Mr French was involved in several incidents, each of which caused him to feel distressed.
In 1969 Mr French was required by a Navy officer to attend a morgue and identify the body of a mate with whom he served who had been killed in a motorcycle accident. This incident was very distressing at the time and still causes him significant distress when he recalls the circumstances.
On the first trip to Vietnam, when HMAS SYDNEY was in Vietnamese waters, Mr French experienced, for the first time, multiple scare charges being detonated off the ship. He had not been given any warning or training in relation to the use of these charges previously. He was below deck at the time.
When he gave evidence Mr French described his reaction:
They go off, it’s a massive explosion, you’re a young lad, first time in the war zone, you’re expecting the worst, you hear a massive explosion and, like I said, your natural reactions…

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.

Keep reading for free

Create a free CaseChat account to read French and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 297
Decision Date: 8 March 2017

CaseChat Overview and Summary

This case concerned an appeal by Mr French against a decision of the Repatriation Commission to refuse his claim for a pension in respect of Generalised Anxiety Disorder. Mr French alleged that his condition was a war-caused injury, stemming from incidents during his service in the Royal Australian Navy between 1967 and 1971, including during the Vietnam War. The dispute centred on whether Mr French had rendered operational service and whether his alleged generalised anxiety disorder was a service-related condition.

The primary legal issues before the court were whether Mr French had rendered operational service as defined by the *Veterans' Entitlements Act 1986* (the Act), and whether he suffered from generalised anxiety disorder. Further, the court had to consider the standard of proof required under section 120 of the Act, particularly the requirement for the Commission to be satisfied beyond reasonable doubt that there was no sufficient ground for making a determination in favour of the applicant, unless a reasonable hypothesis connecting the condition with service was raised.

The court affirmed the decision of the Repatriation Commission. Deputy J W Constance P found that Mr French had not provided sufficient evidence to establish that he suffered from generalised anxiety disorder. While acknowledging the distressing incidents Mr French experienced during his naval service, the court relied on the assessment of Dr Roberts, a Consultant Forensic Psychiatrist. Dr Roberts concluded that Mr French did not meet the diagnostic criteria for Generalised Anxiety Disorder, noting that his anxiety symptoms were not constantly present and appeared to be related to specific circumstances rather than a pervasive disorder. As the court was not satisfied that Mr French suffered from the claimed condition, the remaining issues regarding operational service and the connection to his military duties did not require further consideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow the decisions under review will be affirmed.B: BACKGROUND Unless stated otherwise the following findings of fact are based on the evidence of Mr French. Mr French joined the Royal Australian Navy on 4 January 1967 when he was 16 years old. Between 21 October 1970 and 16 October 1971 he made five trips into Vietnamese waters on board HMAS SYDNEY during the Vietnam War. During his service in the Navy Mr French was involved in several incidents, each of which caused him to feel distressed. In 1969 Mr French was required by a Navy officer to attend a morgue and identify the body of a mate with whom he served who had been killed in a motorcycle accident. This incident was very distressing at the time and still causes him significant distress when he recalls the circumstances. On the first trip to Vietnam, when HMAS SYDNEY was in Vietnamese waters, Mr French experienced, for the first time, multiple scare charges being detonated off the ship. He had not been given any warning or training in relation to the use of these charges previously. He was below deck at the time. When he gave evidence Mr French described his reaction:They go off, it’s a massive explosion, you’re a young lad, first time in the war zone, you’re expecting the worst, you hear a massive explosion and, like I said, your natural reactions take over. It takes some time to settle down.[2]… I threw it up on deck, I think, from memory. I’m thinking back a long way. I can’t be dead accurate on exactly what happened. I can’t remember whether I said anything or done anything below decks, I can’t remember whether I left my tool bag or what now. I know I came flying out and I was not in a good way… I was panicking. It took some time to settle down… I know I was asking questions; I know it was explained what was going on somewhere along the line.[3]… The feeling stays with me, but lessens over time, but the feelings are still there. I still remember what, you know, how I felt at the time… If you’ve been to there you’ll think of panic. You go through a mixed range of things, explanations, looking for reasons, looking for results, you know, where you stand, how safe you are… Worst case scenario, you’re going to go down. Explosives below the water line are never good for a ship… You’re in enemy waters and you’ve been blown up, I would say the main thing is you’re going to die.[4][2] Transcript 19/9/2016 p-16.[3] Transcript 19/9/2016 p-17.[4] Transcript 19/9/2016 p-19. On one of the trips to Vietnam Mr French was required to operate the winch which lowered and raised a rescue boat after a crew member jumped overboard. The man was recovered alive, but was non-responsive when the rescue boat was raised. Mr French was present when he was put onto the deck and then taken to the sick bay. At the time Mr French felt confused, worried and concerned. He is unable to say how long these feelings continued. Another incident occurred while HMAS SYDNEY was in Vietnamese waters and which caused Mr French considerable distress. He was standing on a barge beside the ship when he witnessed an Army sergeant assault an Asian man who was assisting with the unloading of supplies. The sergeant grabbed the man by the neck and struck his head against the side of the ship several times. Mr French saw that the man was bleeding heavily about his head. He felt disgusted by the incident as well as a sense of being useless as he could do nothing to prevent the assault.

Evidence

Evidence Before The Court

The report notes that Mr French was interviewed by a psychologist and a naval police officer and assessed as suitable for transfer to the Naval Police branch.Evidence of Dr Roberts, Consultant Forensic Psychiatrist Dr Roberts assessed Mr French at the request of the Department of Veterans’ Affairs in March 2011. He provided a report dated 30 April 2011[24] and gave evidence.[24] Exhibit R1 p.48. Dr Roberts reported that:… I attempted to elicit from Mr French evidence of physiological concomitants of anxiety namely such symptomatology as would be present in someone who was suffering from significantly heightened anxiety regardless of cause. The questions were posed in a leading manner and it was emphasised that they applied to the totality of his existence, namely at any time in his life from the date of his birth until the date of attendance, both before and after the onset of his current alleged disabilities.The reason for asking such questions is as follows – if it were assumed that Mr French had developed a Reactive state, such a reactive state would come under the broad heading of a reactive neurosis. All neuroses without exception are characterised by heightened inappropriate anxiety, which in turn gives rise to the inevitable physiological concomitants of such a state. It is a useful means of attempting to ascertain whether heightened anxiety is present or not to look for the pathognomonic signs of heightened anxiety, namely the physiological concomitants of such a state. If heightened anxiety of inappropriate degree cannot be demonstrated no reactive state can be diagnosed.Reactive states under consideration include among others – Post-traumatic stress disorder, Dysthymic states, Phobic Anxiety states, Adjustment disorders, and Somatoform disorders among others.[25][25] Exhibit R1 pp 51-52. Under the heading “Mental Status” Dr Roberts reported that Mr French’s “general demeanour was that of an angry man, his anger being primarily directed towards the VRB. There was no evidence otherwise of any abnormality of mood, the thought content was consistent with an angry man, there was no evidence of psychosis, he is grossly cognitively intact on clinical grounds, a subtle disturbance has not been assessed.” [26][26] Exhibit R1 p.57. In the opinion of Dr Roberts, at the time of the assessment, Mr French did not fulfil the diagnosis of Generalised Anxiety Disorder:… as while he describes to some degree excessive anxiety and worry, and at times finds it difficult to control such worries, there are times when he is clearly free of such worry. The impression gain [sic] at interview was that Mr French’s towards anxiety arises in the context of a tendency towards obsessionality and I note that he described himself as a “checker”, that he intends to check everything, but did not give examples, he described as taking him a lengthy time to leave the house.In considering Obsessive Compulsive Disorder, this is currently considered in the DSM-IV as a sub-type of anxiety disorders. While Mr French has certain symptoms of heightened anxiety and obsessionality, these appears to be not constantly present and are related only to specific circumstances, namely when Mr French as [sic] to leave the house and is in areas and environments that are unfamiliar to him.[27][27] Exhibit R1 p.58.Discussion

Decision

Reasons for decision

As I have not been satisfied that Mr French has suffered the claimed condition at any time the remaining issues do not require consideration.CONCLUSION The reviewable decision, being the decision of the Repatriation Commission made 17 April 2014 refusing Mr French’s claim in respect of Generalised Anxiety Disorder, will be affirmed.

Ratio Decidendi

Legal Principle Established

Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:War caused injuries or diseases(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…(e)the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease; but not otherwise.B.2 Standard of proof when claimed injury or disease said to arise out of operational service Section 120 provides, in part:Standard of proof(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.Note: This subsection is affected by section 120A.…(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.Note: This subsection is affected by section 120A.…(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.Reasonableness of hypothesis to be assessed by reference to Statement of Principles