Hansell and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 893

Hansell and Repatriation Commission (Veterans’ entitlements) [2016] AATA 893 (11 November 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/1557

Re

Bernard Francis Hansell

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 11 November 2016

Place Melbourne
The Tribunal affirms the decision under review.

..............[sgd]....................................................
Egon Fice, Senior Member
VETERANS’ ENTITLEMENTS - disability pension - operational service in Royal Australian Navy - posttraumatic stress disorder - evidentiary issues regarding expert opinions - need for collaborating evidence in establishing posttraumatic stress disorder - where Tribunal not satisfied of accuracy diagnosis - where assumption of accurate diagnosis leads to reasonable hypothesis upholding statement of principles - inconsistent and illogical evidence - where Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that condition is war caused - decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A, 196B
CASES
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keely (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327
Woodward v Repatriation Commission (2003) 131 FCR 473
SECONDARY MATERIALS
Statement of Principles Instrument No 82 of 2014 Posttraumatic stress disorder
Statement of Principles Instrument No 5 of 2008 Posttraumatic stress disorder as amended by Instrument No 19 of 2014 Posttraumatic stress disorder
Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4^th ed, 1994).
Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 5^th ed, 2013).
REASONS FOR DECISION
Egon Fice, Senior Member

Mr Bernard Francis Hansell joined the Royal Australian Navy (RAN) on 14 January 1966. He was discharged on 18 May 1972. He had operational service on board HMAS Sydney between 22 April 1966 and 16 May 1966; and again between 25 May 1966 and 11 June 1966 (respondent’s outline of submissions). Mr Hansell also had operational service on HMAS Jeparit between 14 March 1969 and 19 April 1969; and again between 24 April 1969 and 29 May 1969.
MV Jeparit was a general-purpose bulk carrier of the Australian National Line which was chartered by the Department of Shipping and Transport to convey supplies and equipment to Vietnam for the 1st Australian Task Force. Following the charter by the Department of Shipping and Transport, Jeparit’s normal complement of civilian sailors was replaced to the extent that 18 of the crew were then drawn from the RAN. The RAN component comprised one officer and 17 sailors.
On or shortly after 25 July 2012 Mr Hansell lodged an application for the Disability Pension for conditions not yet accepted as service related and for an increase in the disability pension for previously accepted disabilities. I am unable to provide the precise date because the documents produced under s. 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) are incomplete.
The medical condition Mr Hansell claimed arose out…

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: [2016] AATA 893
Decision Date: 11 November 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr Hansell against a decision of the Veterans Review Board (VRB) concerning his claim for a pension for Post-Traumatic Stress Disorder (PTSD) allegedly arising from his operational service in South Vietnam. The VRB had affirmed a prior decision that Mr Hansell's PTSD was not war-caused.

The primary legal issue before the Senior Member was whether Mr Hansell had established, on the balance of probabilities, that he had developed PTSD and, if so, whether that condition was war-caused, meaning it arose from his operational service. This involved assessing the credibility of Mr Hansell's account of specific incidents during his service and determining if those incidents raised a reasonable hypothesis connecting his claimed PTSD with his service, in accordance with the relevant Statement of Principles (SOP No. 5 of 2008).

The Senior Member found that the evidence was insufficient to establish, on the balance of probabilities, that Mr Hansell had developed PTSD. Even if he had developed PTSD, the Senior Member concluded that it developed after 2009, not during his service. Furthermore, while acknowledging that a hypothesis connecting his claimed PTSD with his service could be raised, the Senior Member found serious and irreconcilable problems with Mr Hansell's accounts of the three specific incidents he relied upon. These issues led the Senior Member to be satisfied, beyond reasonable doubt, that there was no sufficient ground to determine that Mr Hansell's PTSD was war-caused.

Consequently, the Senior Member affirmed the VRB's decision of 12 March 2014.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I find, beyond reasonable doubt, that this event, being one of the bases for his hypothesis regarding his development of PTSD, has not been established.CONCLUSION I have found that the evidence before me is insufficient to make a finding, on the balance of probabilities, that Mr Hansell has developed PTSD. I have come to that conclusion reluctantly given that a number of psychiatrists have diagnosed Mr Hansell as having PTSD. In the event that I am wrong and Mr Hansell has developed PTSD, I have found that his PTSD developed after 2009.Assuming that my findings regarding Mr Hansell having developed PTSD are wrong, I have carefully examined all of the material before me in order to determine whether that material raises a reasonable hypothesis connecting his claimed PTSD with the operational service rendered by Mr Hansell in South Vietnam. Mindful of the fact that a hypothesis is simply a basis for reasoning without the assumption of its truth, I have found that the material discloses a reasonable hypothesis which upholds the factors set out in SOP No. 5 of 2008. However, a close examination of the evidentiary material and in particular the accounts given by Mr Hansell of the three incidents he claimed connected the development of his PTSD with his operational service in South Vietnam discloses serious problems with each of those events. Those problems are so serious and irreconcilable with the objective evidence before me that I am satisfied, beyond reasonable doubt, there is no sufficient ground for determining that Mr Hansell’s PTSD was war-caused. I find that the decision made by the VRB on 12 March 2014 was correct. I affirm that decision.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/1557
Re	Bernard Francis Hansell
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	11 November 2016
Place	Melbourne