GRAEME MCDONALD and REPATRIATION COMMISSION - [2012] AATA 344

[2012] AATA 344

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4499

Re

GRAEME MCDONALD

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 7 June 2012

Place Brisbane
The Tribunal affirms the decision under review.
..............[Sgd]..................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Application of Statement of Principles – Appropriate diagnosis of psychiatric condition – Reasonable hypothesis of relevant relationship to service raised for posttraumatic stress disorder – Hypothesis not disproved beyond reasonable doubt – Posttraumatic stress disorder war-caused – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 37, 120, 120A, 177, 196B
CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430

Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Re Glasby and Repatriation Commission [2008] AATA 664
Hunter v Repatriation Commission [2010] FCA 145; (2010) 114 ALD 89
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stoddart (2003) 134 FCR 392; (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 131 FCR 473; (2003) 75 ALD 420; [2003] FCAFC 160

REASONS FOR DECISION
Mr R G Kenny, Senior Member
7 June 2012
BACKGROUND

On 6 May 2011, Graeme McDonald, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for “posttraumatic stress disorder”. He contended that this was related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.
On 3 June 2011, the respondent determined that Mr McDonald’s posttraumatic stress disorder was not related to his service. On 5 October 2011, the Veterans’ Review Board (“the Board”) affirmed the decision.
ISSUE AND SERVICE
Mr McDonald served in the Army from November 1968 until November 1971 and this included a period of eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act, respectively, from 16 September 1970 until 1 October 1970. He also served a period of defence service as well as another period of operational service which are not relevant to this claim. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It reads:
Where a claim under Part II for a pension in respect…

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 GRAEME MCDONALD and REPATRIATION COMMISSION 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: [2012] AATA 344
Decision Date: 7 June 2012

CaseChat Overview and Summary

Graeme McDonald, a former member of the Northern Command Band, appealed a decision regarding his eligibility for a disability pension based on a claim of posttraumatic stress disorder (PTSD) allegedly caused by an incident during his service in South Vietnam. The Repatriation Commission had reviewed and upheld the decision that Mr McDonald’s PTSD was not attributable to his war service. The dispute centred on whether the incident at Vung Tau constituted a category 1A or 1B stressor under the relevant Statement of Principles, which would establish a causal link between his service and his PTSD.

The primary legal issue before the court was whether the incident at Vung Tau qualified as a category 1A or 1B stressor, which would necessitate a finding that Mr McDonald's PTSD was war-caused. This hinged on whether the gunshot and its immediate aftermath constituted an actual peril or threat thereof to Mr McDonald's life. The court had to determine if the Tribunal's findings were supported by evidence and whether the hypothesis that Mr McDonald's PTSD was related to his war service was disproven beyond reasonable doubt.

In reviewing the evidence, the court noted that while Mr McDonald did hear a gunshot during a concert in Vung Tau and experienced a significant reaction to it, there was no evidence that he was directly exposed to an actual peril or threat to his life. The court held that the Tribunal's decision that the gunshot was not a life-threatening event was not unreasonable. Consequently, the court found that Mr McDonald did not experience a category 1A or 1B stressor prior to the onset of his PTSD, and thus his PTSD was not war-caused. The Tribunal's decision affirming the Repatriation Commission's initial determination was upheld.

The final orders of the court affirmed the decision of the Tribunal, meaning that Mr McDonald's claim for a disability pension based on PTSD attributable to his war service was denied.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is no dispute between the parties that Mr McDonald was a percussionist member of the Northern Command Band (“the Band”) while performing a concert in the Flags Area at Vung Tau on 27 September 1970 during which a shot was fired within the assembled concert audience. Mr Matt Black, for Mr McDonald, submitted that, as a result of the gunshot, which was heard by Mr McDonald, a person was killed and the Band almost immediately ceased playing and took steps to leave the area. While Mr Black conceded that Mr McDonald did not see the body of the person killed, he submitted that the incident constituted a category 1A and/or a category 1B stressor as set out in Instrument No. 5 of 2008, the relevant SoP for posttraumatic stress disorder. He submitted that it was significant that Mr McDonald had undergone limited military training; that he had been apprehensive about the circumstances in South Vietnam where he had been for several days only; and that he feared for his life when he heard the gunshot. For the respondent, Mr Bruce Williams submitted that there was no evidence of a person being killed as a result of the gunshot and that Mr McDonald did not experience a category 1A or a category 1B stressor.EVIDENCEMr McDonald After his enlistment, Mr McDonald completed 11 weeks of basic training and, from then until he went to South Vietnam, he underwent no further military training. Rather, as a musician, he was involved in Band duties in parades and concerts. He joined the Band, of some forty members, for the two week tour of South Vietnam as a percussionist. During this tour they played in many concerts and travelled from venue to venue with an armed Land Rover escort. The Band’s transport medium varied from open truck, to covered truck, and to buses. Mr McDonald described feelings of apprehension at being so vulnerable and exposed to possible enemy contact, especially in the open truck because the Band members were in army uniforms and unarmed. Mr McDonald said that one of the billets in which they stayed was subjected to mortar fire on the day after they left and he also recalled seeing blood stains on bedding in another place. He also felt exposed during concerts because of rumours he had heard about the prospect of someone in the audience “taking a shot” at them. This sense of apprehension was heightened because of the limited degree of combat training he had undergone. The Vung Tau concert was in the “open air” in the Flags Area. The Band was seated in a semicircular formation with the Band-master in the centre, facing the Band members. Seating was arranged in four tiers with the percussionists at the highest level. Clarinet and flute players were placed in the front with saxophone players and brass instrument players, respectively, behind them. During the concert, Mr McDonald heard a gunshot and saw smoke, accompanied by a “big crowd reaction” involving “screaming”. He described his reaction to the shooting as saying to his mate: “What was that? What’s going on?”. He then heard that someone had been shot. Mr McDonald said that Band-master kept the Band playing for a short period but some of the Band members reacted by calling on the Band to stop playing. In his evidence to the Board, Mr McDonald estimated that the Band played on for about 15 minutes before dispersing and packing their instruments. Mr McDonald had assumed that someone had been shot though he did not see a body. He learned subsequently that there had been a killing. Mr McDonald felt that his life was threatened and he described the experience making him wish he was “somewhere else” and as “pretty terrifying” because he and the other Band members were so exposed and unarmed.

Decision

Reasons for decision

While I accept that Mr McDonald heard the shot fired at the Vung Tau concert, I am satisfied beyond reasonable doubt that he did not come face to face with an actual peril or threat thereof when the shot was fired at the Vung Tau concert. Further, I am satisfied beyond a reasonable doubt that the gunshot was not a life-threatening event. I am satisfied beyond reasonable doubt that Mr McDonald did not experience a category 1A or a category 1B stressor as those terms are used in SoP No. 5 of 2008, prior to the clinical onset of posttraumatic stress disorder. Accordingly, I am satisfied beyond reasonable doubt that his posttraumatic stress disorder is not war caused in accordance with s 9(1)(b) of the Act. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4499
Re	GRAEME MCDONALD
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	7 June 2012
Place	Brisbane