Garrard and Repatriation Commission (Veterans' entitlements) - [2020] AATA 538

Garrard and Repatriation Commission (Veterans' entitlements) [2020] AATA 538 (13 March 2020)
Division:VETERANS’ APPEALS DIVISION
File Numbers: 2018/5156
Re:Rodney GARRARD
APPLICANT

AndREPATRIATION COMMISSION
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:13 March 2020
Place:Brisbane

The decision as to the Applicant’s claim for hypertension is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the finding that the Applicant’s hypertension is war-caused.
...................................[SGD]..........................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – standard of proof – relevant Statements of Principles – hypertension – decision set aside and remitted for reconsideration
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
Ellis v Repatriation Commission (2014) 142 ALD 352; [2014] FCA 847
Kaluza v Repatriation Commission [2014] FCA 1137
SECONDARY MATERIALS
Statement of Principles concerning hypertension No. 63 of 2013
REASONS FOR DECISION
Senior Member Katter
13 March 2020
APPLICATION

The Applicant seeks review of the decision as to hypertension not being war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)[1].
[1] Transcript, 4 December 2019, P-4 at lines 27-30 and 44-45.
BACKGROUND
The Applicant served in the Royal Australian Navy[2]. The Applicant’s eligible operational service[3] for the purposes of the Act, which dates are not in contention[4], was as follows: (a) 31 May 1965 to 22 June 1965; (b) 25 April 1966 to 6 May 1966; and (c) 25 May 1966 to 9 June 1966[5].
[2]           Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, paragraph 2.
[3]           Transcript 4 December 2019, P-6 at line 11.
[4]           Transcript 4 December 2019, P-6 at lines 40-42.
[5]           Transcript 4 December 2019, P-6 at lines 21-26.
By an Application for Review to this Tribunal dated 10 September 2018[6], the Applicant applied for review of the decision made on 10 July 2018[7], describing the decision as “ … hypertension, obstructive sleep apnoea and fractured leg were rejected as not service related”[8]. In the Application for Review, the Applicant stated as to why the decision is wrong: “The decision is contrary to the evidence”[9].
[6]           Exhibit1, T3, page 6.
[7]           Exhibit 1, T3, page 6.
[8]           Exhibit 1, T3, page 6.
[9]           Exhibit 1, T3, page 6.
At the hearing on 4 December 2019 the Applicant withdrew the two conditions, described as fractured leg and obstructive sleep apnoea[10]. The Applicant referred to the decision of 15 February 2017 of the Respondent, which found that the Applicant’s hypertension and obstructive sleep apnoea were not related to service under the Act[11]. The Applicant stated that the condition diagnosed as hypertension is the subject of a claim dated 3 November 2016 and is part of a reviewable decision[12].
[10]          Transcript 4 December 2019, P-4 at lines 34-45.
[11]          Transcript 4 December 2019, P-4 at lines 28-30.
[12]          Transcript 4 December 2019, P-5 at lines 1-2.
In a claim form dated 3 November 2016[13] the Applicant…

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 Garrard 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: [2020] AATA 538
Decision Date: 13 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning the applicant's claim for a disability pension for hypertension, which the Repatriation Commission had determined was not defence-caused. The applicant, who served in the Royal Australian Navy, sought to have his hypertension recognised as a condition arising from his operational service. The applicant's claim was initially rejected by the Commission, a decision affirmed by the Board, leading to the present application for review.

The primary legal issue before the Tribunal was to determine whether the applicant's hypertension was war-caused, within the meaning of the Veterans' Entitlements Act 1986 (Cth). This required the Tribunal to consider the relevant Statements of Principles and to assess whether the evidence supported a hypothesis connecting the applicant's hypertension to his operational service, and if so, whether that hypothesis could be disproved beyond reasonable doubt.

The Tribunal applied the principles outlined in cases such as *Kaluza v Repatriation Commission*, which require a structured approach to assessing such claims. This involves identifying the disease, determining if facts support a hypothesis connecting it to service, assessing the reasonableness of that hypothesis, and if a Statement of Principles is in force, checking if the hypothesis is upheld by it. The Tribunal considered the applicant's evidence regarding stressful experiences during his service, including apprehension about deployment to Vietnam and witnessing aircraft crashes, and a hypothesis that these experiences led to increased alcohol consumption and subsequently hypertension. The Tribunal found that this hypothesis was not disproved beyond reasonable doubt, and was upheld by the relevant Statement of Principles.

Consequently, the Tribunal decided that the applicant's hypertension was war-caused. The previous decision of the Repatriation Commission was set aside, and the matter was remitted to the Commission for reconsideration in accordance with the finding that the hypertension is war-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant seeks review of the decision as to hypertension not being war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)[1]. [1] Transcript, 4 December 2019, P-4 at lines 27-30 and 44-45.BACKGROUND The Applicant served in the Royal Australian Navy[2]. The Applicant’s eligible operational service[3] for the purposes of the Act, which dates are not in contention[4], was as follows: (a) 31 May 1965 to 22 June 1965; (b) 25 April 1966 to 6 May 1966; and (c) 25 May 1966 to 9 June 1966[5]. [2] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, paragraph 2.[3] Transcript 4 December 2019, P-6 at line 11.[4] Transcript 4 December 2019, P-6 at lines 40-42.[5] Transcript 4 December 2019, P-6 at lines 21-26. By an Application for Review to this Tribunal dated 10 September 2018[6], the Applicant applied for review of the decision made on 10 July 2018[7], describing the decision as “ … hypertension, obstructive sleep apnoea and fractured leg were rejected as not service related”[8]. In the Application for Review, the Applicant stated as to why the decision is wrong: “The decision is contrary to the evidence”[9]. [6] Exhibit1, T3, page 6.[7] Exhibit 1, T3, page 6.[8] Exhibit 1, T3, page 6.[9] Exhibit 1, T3, page 6. At the hearing on 4 December 2019 the Applicant withdrew the two conditions, described as fractured leg and obstructive sleep apnoea[10]. The Applicant referred to the decision of 15 February 2017 of the Respondent, which found that the Applicant’s hypertension and obstructive sleep apnoea were not related to service under the Act[11]. The Applicant stated that the condition diagnosed as hypertension is the subject of a claim dated 3 November 2016 and is part of a reviewable decision[12]. [10] Transcript 4 December 2019, P-4 at lines 34-45.[11] Transcript 4 December 2019, P-4 at lines 28-30.[12] Transcript 4 December 2019, P-5 at lines 1-2. In a claim form dated 3 November 2016[13] the Applicant stated at Part E as to details of new disabilities now claimed as war or defence caused[14]: Disability 1 Hypertension Signs and symptoms High Blood pressure Hard to breathe Diseyness [sic] How do you believe your service caused, contributed to or aggravated this disability? By Serving in NAVY and By Smoking in Service When did you first become aware of the signs and symptoms of the disability, or the aggravation of the disability? (approx. date if known) 1975.[13] Exhibit 1, T56, page 292.[14] Exhibit 1, T56, page 285. At Part E of the form dated 3 November 2016, a medical practitioner, Dr Grant stated[15]: Medical diagnosis Diagnosis Hypertension Basis for diagnosis Repeat Readings Above 140/90 … .[15] Exhibit 1, T56, pages 285 and 286. The Respondent acknowledged the receipt of the claim of the Applicant as to hypertension on 12 December 2016[16], further to lodgement on 8 December 2016[17]. [16] Exhibit 1, T62, page 313.[17] Exhibit 1, T66, page 319. The decision of the delegate of the Respondent dated 15 February 2017 decided that hypertension was not related to service[18]. [18] Exhibit 1, T66, page 319.

Evidence

Evidence Before The Court

On 11 April 2017 the Board acknowledged the Application for Review under s 135 of the Act as to the decision of the delegate of the Respondent dated 15 February 2017 refusing hypertension[20]. On 10 July 2018 the Board decided to affirm the decision of the Respondent dated 15 February 2017 as to hypertension not being related to service[21]. [20] Exhibit 1, T70, page 339.[21] Exhibit 1, T81, page 384.EVIDENCE The three periods of operational service, which were all on HMAS Melbourne, are not in contention[22]. [22] Transcript of 4 December 2019, P-6 line 42. The Applicant joined the Royal Australian Navy in February 1962, when he was sixteen years of age[23]. The Applicant underwent initial training and training as a Writer, with service at HMAS Cerberus, HMAS Watson and HMAS Waterhen, before posting to HMAS Melbourne in 1964[24]. [23] Exhibit 5, Statement dated 30 April 2019, paragraph 3. [24] Exhibit 5, Statement dated 30 April 2019, paragraphs 4 and 5. The Applicant gave evidence as to his recollections on his state of mind when first receiving communications as to posting with HMAS Melbourne to Vietnam, stating that “[w]e were very apprehensive. I was shit scared.[25]”[25] Transcript of 4 December 2019, P-9 line 30. The Applicant referred to a Gannet aircraft conducting “touch and goes” on HMAS Melbourne, at night, with helicopters flying in support during that training[26]. The Applicant stated that the Gannet aircraft were, by that time, used principally for training[27]. The Applicant recalled that three aircraft were lost overboard, with one fatality[28]. The Applicant stated that his recollection was that that fatality occurred before HMAS Melbourne travelled to Vietnam[29]. The Applicant gave evidence of his awareness of that fatality in the ‘aftermath’, after the incident had occurred[30]. The Applicant recalled that the fatality involved one of the aircrew, who went over the side and was not recovered[31]. The Applicant stated that he was told to “muster onto the flight deck and [was] ordered to clean up the mess on the deck”, being dressed in gumboots, with overalls and hard hats. The Applicant further stated that he slipped over whilst undertaking that work, hurting his right ankle, resulting in a half-cast on that ankle[32]. [26] Exhibit 5, Statement dated 30 April 2019, paragraph 10.[27] Exhibit 5, Statement dated 30 April 2019, paragraph 11.[28] Exhibit 5, Statement dated 30 April 2019, paragraph 10.[29] Transcript of 4 December 2019, P-9 line 16.[30] Transcript of 4 December 2019, P-9 lines 18-19.[31] Exhibit 5 Statement dated 30 April 2019, paragraph 11.[32] Exhibit 5 Statement dated 30 April 2019, paragraph 11. The Applicant referred to a crash involving a Gannet aircraft on or about 28 April 1966, during flying operations in the Sulu Sea[33]. The Applicant stated that he was aware of that crash in its ‘immediate aftermath’[34]. The Applicant stated that, as to the crashes of the Gannet aircraft, he had particular feelings at that time[35]: “ … we were already scared shitless just for being up there. We were amongst another lot of blokes who were seasoned sailors. … And we just had to shut up and put up. We were scared.”[33] Transcript of 4 December 2019, P-10 lines 26-30.[34] Transcript of 4 December 2019, P-10 lines 29-30.[35] Transcript of 4 December 2019, P-10 lines 35-38.

Decision

Reasons for decision

It is decided that the hypothesis that the Applicant’s stressful experiences during his operational service resulted in him developing an increased alcohol consumption habit and condition that led him to developing hypertension is not disproved beyond reasonable doubt. Further to the consideration of the evidence under s 120(1), where the hypothesis is upheld by the Statement of Principles and is not unreasonable under s 120(3), there is not satisfaction beyond reasonable doubt of the existence of facts which “destroy” the applicability of the reasonable hypothesis of causal connection. The claim as to hypertension succeeds therefore, as it is not so disproved. It is therefore found that the hypertension is war-caused. DECISION The decision under review, rejecting the Applicant’s claim in accordance with the Act, is set aside and the matter is remitted to the Respondent for reconsideration[89], in accordance with the finding that the Applicant’s hypertension is war-caused in accordance with the Act. [89] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

Ratio Decidendi

Legal Principle Established

Sub-sections 120A(2), (3) and (4) are applicable, with the requirement for a factor stated in the relevant Statement of Principles to exist in order for a hypothesis to be considered reasonable[66]. Whilst the condition cannot be held to be related to service unless one of the factors in the Statement of Principles exist, there must be satisfaction beyond reasonable doubt that a factor does not exist before the claim can be rejected[67].[66] Paragraph 7 of the submissions of the Applicant dated 24 December 2019 and page 2, page 2, paragraph 3 of the submissions of the Respondent dated 29 January 2020.[67] Paragraph 7 of the submissions of the Applicant dated 24 December 2019.CONSIDERATION In Kaluza v Repatriation Commission [2014] FCA 1137 at [68] per Foster J, the following was stated:In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the Full Court explained the approach which the Tribunal was required to take … . The Full Court said: … As [the Applicant] contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows … :1 The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCA Trans 303)).2 If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the … Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the … Act as qualified by s 120(3) and s 120A (Budworth (at [19])).3 In applying ss 120(1), 120(3) and 120A of the … Act, the Tribunal was to consider all the material and determine whether:(i) it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and(ii) that hypothesis can be regarded as reasonable, if the “raised facts” are true. (Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)).4 If the “raised facts” pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the “kind of disease” from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCA Trans 302)).5 If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is “upheld” by the SoP in the sense of being “consistent with the ‘template’ to be found in the SoP” (Deledio step three (at 97G)).6 If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.