Guy and Repatriation Commission - [2001] AATA 685

DECISION AND REASONS FOR DECISION [2001] AATA 685

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q2000/134,135

VETERANS' APPEALS DIVISION       )
           Re      COLIN MACKENZIE GUY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member Dr. K.P. Kennedy, OBE, Member Mr. I.R. Way, Member

Date22 June 2001
PlaceBrisbane

.............(Signed)................................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
VETERANS' APPEALS – Oesophageal reflux, alcohol abuse, stressful event

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member
Dr. K.P. Kennedy, OBE, Member Mr. I.R. Way, Member

This is an application to review a decision to reject claims that the applicant's disabilities of oesophageal reflux and alcohol abuse are war-caused.
This matter was heard on 22 June 2001. At the end of the hearing the Tribunal gave an oral decision, to affirm the decision to reject the applicant's claim to have oesophageal reflux and alcohol abuse accepted as war-caused disabilities.
The Tribunal accepts that the applicant, Colin Mackenzie Guy, suffers from oesophageal reflux. The Tribunal also accepts that he suffers from a degree of alcohol abuse, but that his alcohol abuse is not serious. It has never done him any physical harm. It has never caused him any problems at work. He has been able to work as a policeman for just over 30 years. He rose to the rank of Inspector. He worked in the Commissioner's office. Obviously his so-called alcohol abuse has been at the lower end of the scale. It has been essentially a voluntary, socially based pastime. He can restrict his intake when he wishes to. Nevertheless, he probably drinks a little bit more than he should.
The question is whether the oesophageal reflux and the alcohol abuse are war-caused. It is conceded by the respondent that if the alcohol abuse is war-caused, then it follows that the oesophageal reflux is also war-caused. If the alcohol abuse is to be held to be war-caused, it has to, under the Statements of Principles, either be brought on by a war-caused psychiatric condition, or by an occurrence of a stressful event which occurred during war service.
The applicant served in the Australian Navy in the 1950s. The proposition has been put that the applicant was subjected to some stressful events whilst he was serving in Japanese and Korean waters between mid-1954 and early 1955. There was, at that stage, no warlike enemy action. There was an uneasy truce. He never experienced any military or naval engagements or fighting. The stressful events are said to have been events which occurred on board ship. One was a stand to in which it was thought that there might have been an enemy aircraft approaching – needless to say, it did not. There were other events involving him as a stoker and having to be in cramped or a claustrophobic situation in the bowels of the ship.
The question really arises then, as to whether or not Mr. Guy suffered in 1954/55 or thereabouts from a generalised anxiety disorder. The applicant relies on the evidence…

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.

Continue reading Guy and Repatriation Commission

Details

AGLC: Guy and Repatriation Commission [2001] AATA 685
Case: [2001] AATA 685
Decision Date: 22 June 2001

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) in the matter of Colin Mackenzie Guy versus the Repatriation Commission was tasked with determining whether the applicant's disabilities, specifically oesophageal reflux and alcohol abuse, were war-caused. The Tribunal, composed of Mr. D.W. Muller, Senior Member, Dr. K.P. Kennedy, OBE, Member, and Mr. I.R. Way, Member, heard the matter on 22 June 2001 and subsequently affirmed the decision to reject the applicant's claims. The central issue before the Tribunal was to ascertain if the applicant's disabilities were a result of his service in the Australian Navy during the 1950s.

The legal issues that the Tribunal had to resolve included whether the applicant's alcohol abuse and oesophageal reflux were caused by a war-related psychiatric condition or a stressful event during his war service. The Tribunal examined the evidence provided by two psychiatrists, Dr. Carter and Dr. Kingswell. Dr. Carter suggested that the applicant had suffered from a psychiatric disorder since 1954 based on his drinking habits, while Dr. Kingswell argued that the applicant's ability to function well in the Navy and get promoted indicated no such psychiatric illness. The Tribunal had to decide which medical opinion, if any, was more credible and whether the applicant's experiences during his service could be classified as stressful events under the applicable Statements of Principles.

The Tribunal ultimately rejected Dr. Carter's diagnosis, finding it to be an untenable basis for concluding that the applicant had a lifelong psychiatric illness. The Tribunal accepted that the applicant's drinking and occasional disorderly behavior were due to social and peer pressure rather than a psychiatric disorder. Additionally, the Tribunal concluded that the applicant's experiences during his service did not amount to the level of stress required to cause a psychiatric illness or resultant alcohol abuse under the applicable legal standards. Consequently, the Tribunal affirmed the decision to reject the applicant's claims for his disabilities to be recognised as war-caused.

Orders