Guild and Repatriation Commission (Veterans' entitlements) - [2024] AATA 523

Guild and Repatriation Commission (Veterans' entitlements) [2024] AATA 523 (26 March 2024)
Division:VETERANS' APPEALS DIVISION
File Number: 2021/4228
Re:Ian Mackenzie Guild
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:26 March 2024
Place:Sydney

The decision under review is affirmed.
................[SGD]........................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
VETERANS’ AFFAIRS – veterans’ entitlements – pension – Statements of Principles (SoPs) – applicant claimed hypertension and cerebral small vessel disease with ataxia are war-caused – applicant claimed hypertension caused by increased salt and alcohol intake during service – whether earlier claim for ataxia finally determined – where no SoP for ataxia – whether reasonable hypothesis – whether Tribunal satisfied beyond reasonable doubt that there no sufficient ground for making determination – claimed diseases not war-caused – decision under review affirmed
Legislation
Statement of Principles concerning cerebrovascular accident (No. 65 of 2015)
Statement of Principles concerning hypertension (Reasonable Hypothesis) (No. 21 of 2022)
Statement of Principles concerning vascular neurocognitive disorder (Reasonable Hypothesis) (No. 9 of 2023)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Owen v Repatriation Commission (1995) 59 FCR 93; [1995] FCA 607
Repatriation Commission v Stafford (1995) 56 FCR 13; [1995] FCA 1411
Spencer v Repatriation Commission [2002] FCA 229
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
26 March 2024
INTRODUCTION

Retired Lieutenant-Colonel Ian Guild MBE OAM joined the Australian Army on 18 January 1965, having previously served in the British Army. He served as a platoon commander in Vietnam from 28 May 1965 to 6 May 1966, and on peacekeeping operations in Lebanon from 20 February 1980 to 1 April 1981. He progressed through the ranks and served with distinction. He retired from the army on 17 January 1985 and married in 1992.
In December 2015, he had a left hip arthroplasty. He became increasingly unsteady on his feet and during 2016 experienced a condition known as axial ataxia. In July 2017, a neurologist (Dr R. Joffe) diagnosed the primary cause as small vessel disease in the left cerebral hemisphere. This was not expected to improve or respond to physiotherapy.
His health has declined over the past few years. From 2018, he started experiencing cognitive decline. He had a bad fall in October 2019 and in August 2020 fell again and fractured five ribs. He had a minor stroke in hospital.[1] In April 2021, his short-term memory decline was noticeable, and in May 2021, his driver’s licence was cancelled. In July 2021 he was diagnosed with bladder cancer and had a successful operation to have the cancer removed. [2] In June 2023, he was formally diagnosed with dementia.[3]
[1] Mrs Guild’s oral evidence, Transcript, 17 October 2023, 40.
[2] Mrs Guild’s oral evidence, Transcript, 17 October 2023, 40.
[3] CVC Program Comprehensive Care Plan; Joint Tender Bundle (JTB), 343, at 344. Mrs Guild’s oral evidence, Transcript, 17 October…

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.

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Details

Case: [2024] AATA 523
Decision Date: 26 March 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr Guild against a decision of the Repatriation Commission, reviewed by the Administrative Appeals Tribunal, which affirmed the Commission's refusal to accept that Mr Guild's hypertension and cerebral small vessel disease with ataxia were war-caused. Mr Guild contended that his hypertension was caused by increased salt and alcohol consumption during his military service, which in turn led to the development of cerebral small vessel disease with ataxia. The Commission had treated the claim for ataxia as a claim for cerebral small vessel disease with ataxia.

The primary legal issues before the Tribunal were whether the earlier claim for ataxia had been finally determined, whether there was a Statement of Principles (SoP) applicable to ataxia, and whether the material before the Tribunal raised a reasonable hypothesis connecting Mr Guild's claimed diseases to his service, such that the Commission should have been satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the diseases were war-caused. The Tribunal also considered whether the legislative provisions governing the Commission and the Tribunal, particularly those relating to substantial justice and the merits of the case, allowed for a review of the decision concerning cerebral small vessel disease with ataxia, despite potential issues with the application process.

The Tribunal reasoned that the claim for cerebral small vessel disease with ataxia was reviewable, noting that there was ample material, including MRI scans and clinical notes, to support Mr Guild's condition. It was acknowledged that no SoP existed for cerebral small vessel disease. Applying section 120 of the *Veterans' Entitlements Act 1986* (Cth), the Tribunal determined that the standard of proof required the Commission to be satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the disease was war-caused, unless the material raised a reasonable hypothesis connecting the disease with the circumstances of service. The Tribunal found that the evidence presented, including lay statements regarding Mr Guild's diet and alcohol consumption during and after service, and medical evidence from specialists, did raise a reasonable hypothesis connecting his hypertension and subsequent cerebral small vessel disease with ataxia to his war service in Vietnam and peace-keeping operations in Lebanon. The Tribunal also considered the beneficent nature of the VE legislation, which requires the Commission to act according to substantial justice and the merits of the case, and concluded that subsection 14(5) of the Act did not prevent the Tribunal from reviewing the Board's decision on cerebral small vessel disease with ataxia, as to do so would be a triumph of formalism over justice.

The Tribunal concluded that the material before it raised a reasonable hypothesis connecting Mr Guild's claimed diseases with the circumstances of his particular service. Consequently, the Tribunal found that it did not hold the opinion that the material did not raise a reasonable hypothesis, and therefore, it was not satisfied beyond reasonable doubt that there was no sufficient ground for making a determination connecting his ataxia with his particular service. The Tribunal affirmed the decision of the Commission, finding that the Board's decision was not beyond review due to a defect in the application process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Commission treated the applicant’s claim for ataxia as a claim for cerebral small vessel disease with ataxia.The Lay Evidence The evidence relating to Mr Guild’s diet including alcohol consumption is contained in Mr Guild’s statement of 7 December 2021,[57] a supplementary statement dated 12 April 2022,[58] and a statement provided by Mrs Guild dated 7 December 2021.[59] [57] A1, 3-4.[58] A8, 407-8.[59] A4, 384-385. In his first statement, Mr Guild said:Nature of Alcohol Consumption2I began drinking in or about 1955, when I was 18 years of age.3Before my service in Vietnam, I recall that I would drink about two beers which is equivalent to two pints. I would say on average I would drink this amount three times a week. I played rugby at this time and therefore I maintained a relatively healthy diet which included a low consumption of alcohol.4During my service in Vietnam, alcohol was not available while we were out on operations, which could last up to four weeks at a time. Alcohol was available at the base and we were allowed to drink whilst there, which would probably be anything between three to four days up to a week. On average, I would drink four days a week whilst we were on base. I recall that I would on average have around three beers per night on these occasions.5Immediately after my posting to Vietnam, I recall drinking most nights of the week at the Officer’s Mess. On these occasions, I would drink anywhere between two to eight drinks per night depending on who I was with and the time. I would usually be in the company of my fellow officers.6This routine continued until I left the Army in January 1985. He also referred to his alcohol consumption after leaving the service:8After leaving the Army in 1985, I worked in school fundraising in Sydney, running the Foundations at both Abbotsleigh and Shore Schools. In addition to meeting friends including colleagues from my time in the Army, there would also be school fundraising evenings, and sometimes there was dinners. I would estimate on average, I would drink two to three standard drinks per night, about three to four nights a week. I had this drinking routine for approximately 10 years.9In July 1998, Ann and I moved to the United Kingdom for five years, as Ann wanted to be involved in her grandchildren’s lives while they were small. We lived there until February 2003 and then we moved back to Sydney. Whilst in the United Kingdom, I continued doing fundraising work, working at Oxford Brookes University, Oxford. Whilst living in the United Kingdom, on average I would drink about two to three standard drinks per nights, most nights of the week.10I would say this drinking routine continued more of less when I returned to Sydney in 2003.11Currently, I would say I consume on average about one standard drink a night, being either a glass of wine or a whisky with water, four to five nights a week. I believe my time in the Army, including my service in Vietnam caused me to drink more than I would have done if I had not joined the Army. I would also add that my service in Vietnam affected me as I experienced significantly stressful events which contributed to me drinking more alcohol and as a way to cope with the traumatic memories, such as those of booby traps and witnessing my fellow soldiers being killed.

Decision

Reasons for decision

On the authority of Spencer, the Tribunal’s decision-making process relating to cerebral small vessel disease with ataxia (as the claimed ultimate condition) would be governed by subsections 120(1) and (3), and not by subsection 120A(3), whether or not there was a SoP applicable to one or more antecedent causes hypothesised for that ultimate condition.[50] [50] See Respondent’s Closing Submissions, para [30].Conclusion on invalidity The VE legislation is beneficent in nature. This is illustrated by sections 119 and 138 of the VE Act. The Commission is required to act ‘according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities’, and in conducting a review, the Board is: (a) not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits and all the circumstances of the case and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance…[51][51] VE Act, s 138. These are extraordinarily broad provisions. On their face, they appear to be potentially curative even in a case where questions of validity arise by reason of subsection 14(5), especially where time is of the essence, as it is in this case given the nature of Mr Guild’s age and health. Moreover, as Mr Saunders rightly submits, the Commission itself suggested a fresh application as a way forward and did not identify the issue as a potential obstacle when considering Mr Guild’s second application. The Commission rejected the claim based on cerebral small vessel disease with ataxia on 11 December 2019,[52] and did so again on 26 May 2020.[53] The Board upheld the Commission’s second decision on 19 April 2021.[54] It would be a triumph of formalism over justice to require Mr Guild to make a further application to secure from the Tribunal a review on the merits relating to that condition. [52] T5, 51.[53] T7, 61.[54] T23, 222. I conclude that subsection 14(5) does not prevent the Tribunal from reviewing the Board’s decision on cerebral small vessel disease with ataxia. In affirming the decision of the Commission, the Board made a reviewable decision. It was not beyond review because of a defect in the application process. Lawlor appears to be directly in point.[55][55] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21. As to the second point raised by Mr O’Brien, namely, of treating vascular dementia as within scope in these proceedings, the practical impediment in doing so is that no claim has been made to the Tribunal for that condition. It may be that vascular dementia is the consequence of hypertension or cerebral small vessel disease with ataxia, but there are difficulties in expanding the scope of the inquiry in that way. I note that the Respondent pointed to authorities which create potential obstacles for the Tribunal in considering vascular dementia as a separate condition.[56] These authorities suggest that the Tribunal cannot consider a condition that has not considered by the Commission or reviewed by the Board. [56] Respondent’s Closing Submissions, at [18]-[19], citing Owen v Repatriation Commission (1995) 59 FCR 93; [1995] FCA 607; Repatriation Commission v Stafford (1995) 56 FCR 13; [1995] FCA 1411.

Ratio Decidendi

Legal Principle Established

Finally, in re-examination Mr O’Brien asked whether Dr England agreed that salt could cause hypertension: You were asked about whether you don’t – I think the question was you don’t disagree that excessive salt consumption can cause hypertension. And you were asked that it was multifactorial?---Yes. I think you accepted that salt was one of the reasons or one of the causes?---Yes. I think reference was made to similar evidence that Dr Herman gave yesterday. Dr Herman’s evidence was that his – he felt that contribution of salt towards hypertension was five per cent. Is that something you would agree with?---Yes, I’d agree with Dr Herman, yes. CONSIDERATION I am satisfied that the refusal of the Board to accept Mr Guild’s claim for ataxia caused by cerebral small vessel disease is reviewable by this Tribunal. There is ample material before the Tribunal that Mr Guild suffers from such a condition. This material may be found in the MRI scans undertaken by Dr Joffe in July 2017 and the associated clinical notes, to which reference has previously been made. The parties agree that there is no SoP relating to cerebral small vessel disease. As noted above, by reason of section 120 of the VE Act, claims for war-caused conditions arising from operational service, or defence-caused conditions arising from peace-keeping operations are subject to special rules relating to the standard of proof.[101] The Commission shall determine that the injury or disease or death was war-caused or defence-caused, as the case may be, ‘unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination’.[102] Moreover, subsection 120(3) provides that the Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground if after considering all the material before it, it is of the opinion that it ‘does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person’.[103] [101] VE Act, ss 120(1),(2)[102] VE Act, ss 120(1), (2).[103] VE Act, subsection 120(3). Does the material raise a reasonable hypothesis? The overarching hypothesis raised by Mr Guild is that his service exposed him to excessive salt and alcohol consumption, and that these factors, either alone or in combination, produced a hypertensive vascular condition which led ultimately to the development of cerebral small vessel disease with ataxia. This is based on two underlying hypotheses. First, that salt consumption in the military during his operational service exceeded safe levels with the possibility of habituation and continued use long after the operational service ended. Secondly, that a culture of alcohol consumption in the Australian military contributed to a lifelong habit of at least moderate and consistent drinking. Each of the factors can produce hypertension and subsequent cerebral small vessel disease. I have carefully examined the material presented to the Tribunal, including the historical evidence presented by Mr Hawke, and the written and oral evidence of Mr and Mrs Guild. I have also examined the medical evidence presented by two medical specialists, Dr Herman and Dr England. This material in totality raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by Mr Guild, namely war service in Vietnam in 1965 and peace-keeping operations in Lebanon in 1980-81. Therefore, I do not hold the opinion that the material before the Tribunal ‘does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person’. Of course, if I did hold such an opinion, I would be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination connecting his ataxia with his particular service.The ultimate issue