Hayes and Repatriation Commission - [2000] AATA 753

DECISION AND REASONS FOR DECISION [2000] AATA 753

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/259

VETERANS' APPEALS DIVISION       )
           Re      ARTHUR MYLES HAYES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date29 August 2000
PlaceSydney

Decision      The decision under review is set aside and in substitution therefore the Administrative Appeals Tribunal finds that the Applicant's psoriasis was war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986 on and from 7 November 1996.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans - whether psoriasis war caused - Keeley issue - parties agree applicant had psoriasis at relevant time - respondent concedes stressor – psoriasis war-caused

Legislation
Veterans' Entitlements Act 1986 ss 9, 120(1) and (3)

Statement of Principles
Repatriation Medical Authority Statement of Principles concerning Psychoactive Substance Abuse or Dependence Instrument No.5 of 1994
Repatriation Medical Authority Statement of Principles concerning Psoriasis Instruments No.7 of 1996 and No.21 of 1998
Cases
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 31 AAR 150
Thompson v Repatriation Commission [2000] FCA 939

REASONS FOR DECISION

29 August 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Repatriation Commission dated 21 April 1997 (T2) as affirmed by the decision of the Veterans' Review Board on 14 January 1999 (T24), which refused the Applicant's claim that his psoriasis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The Applicant, Mr Arthur Myles Hayes, was represented by Mr C Colborne of counsel who was instructed by Vardenaga Roberts Solicitors, and the Respondent by its advocate, Mr R Wallis.
ISSUES BEFORE THE TRIBUNAL
The issue before the Tribunal was whether the Applicant's psoriasis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
LEGISLATIVE FRAMEWORK
The relevant legislation in relation to this matter was the Veterans' Entitlements Act 1986 ("the Veterans' Act"), in particular section 9. Section 9 provides:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"
The standard of proof for the operational service given to his country by Mr Hayes between 27 March 1943 and 29 January 1946 is that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Veterans' Act.
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the…

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 Hayes and Repatriation Commission

Details

AGLC: Hayes and Repatriation Commission [2000] AATA 753
Case: [2000] AATA 753
Decision Date: 29 August 2000

CaseChat Overview and Summary

The case of Hayes and Repatriation Commission involved a veteran, Mr Hayes, who sought to establish that his psoriasis was caused by his war service. The dispute was heard by the Administrative Appeals Tribunal and the primary issue was whether Mr Hayes' psoriasis was war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986. The parties agreed that the earliest relevant date for the determination was 7 November 1996. Mr Hayes served in the RAAF from 1943 to 1946 and had been exposed to various stressors during his service, including proximity to combat and operational duties in England. The Tribunal had before it medical evidence and expert opinions, as well as Mr Hayes' own testimony regarding his service, his drinking habits, and the onset of his psoriasis.

The legal issues before the Tribunal involved the application of the relevant Statements of Principles (SoPs) concerning psoriasis and the principles established in Repatriation Commission v Deledio. The Tribunal had to determine which SoP was applicable to Mr Hayes' claim, considering the timeline of his service and the progression of the SoPs over time. The Tribunal also had to assess whether the evidence supported a reasonable hypothesis that Mr Hayes' psoriasis was connected to his war service, and whether this hypothesis was consistent with the relevant SoPs.

The Tribunal found that the applicable SoP for Mr Hayes' claim was Instrument No.7 of 1996, as it was in force at the time of the initial decision by the Repatriation Commission on 21 April 1997. The Tribunal applied the principles established in Keeley and Deledio to evaluate the evidence and concluded that the reasonable hypothesis linking Mr Hayes' psoriasis to his war service was supported. The Tribunal was satisfied that Mr Hayes' psoriasis met the requirements of the SoP and that it was war-caused. The Tribunal further noted that Mr Hayes demonstrated symptoms of alcohol dependence, which had some relevance to the consideration of alcohol abuse and alcohol dependence under Clause 5(e) of Instrument No.21 of 1998 concerning Psoriasis.

The Tribunal set aside the decision of the Repatriation Commission and found that Mr Hayes' psoriasis was indeed war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986, effective from 7 November 1996.

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

The parties agreed, and I accepted, that the earliest date of effect in this matter was 7 November 1996.EVIDENCE BEFORE THE TRIBUNAL The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits: ITEM DATE NAME Medical Report of Dr G Miller 22 July 1999 Exhibit A1 Photograph of the Applicant's Psoriasis October 1998 Exhibit A2 Medical Report of Dr M Walden 21 October 1999 Exhibit R2 Mr Hayes whose date of birth was 23 February 1925, gave evidence regarding his war service. He joined the RAAF in March 1943 and was a pilot and engaged in training aircrew. He had been posted at various locations both in Australia and in England and Scotland. Amongst other assignments, Mr Hayes had served with the Advanced Flying Unit in Lancashire, England. He had also been involved in training with the Advanced Flying Unit in Gloucestershire and Babdown Farm. He served his country on operational service from 27 March 1943 to 29 January 1946 (T3). Mr Hayes said that before enlistment, he did not drink alcohol except occasionally to have a beer for Sunday lunch with his father. He said he started drinking after he joined the RAAF, and when he was posted to Temora. He explained that on week-end leave he would go the pub and drink for three hours or so until he had "had enough", and then return to camp. Mr Hayes said that when he went to England, he drank even more. He said that he was close to the action, and was always hearing about bomber losses, war stories and being part of other disturbing events. He said alcohol was more available in England, and he and his colleagues would sit and just keep drinking until the pub closed. Mr Hayes said that he would then ride home on his bicycle under the influence of alcohol, and later also on his motorcycle. Mr Hayes said that after discharge he had a "type of war neurosis" based on the stress of the war and the bombing, and found it "a very difficult time to settle down … after being in the airforce." Mr Hayes said that he set up a small business as a sawdust merchant and that later his father bought a semi-trailer and he carted cement. Mr Hayes said that he drove the semi-trailer, sometimes drunk and sometimes hung-over. He said that he had often driven under the influence of alcohol until random breath testing commenced. Mr Hayes also said that he had flown crop-dusters for ten years from approximately 1967 or 1968, and that he had flown under the influence of alcohol occasionally. When questioned further, he said that it was about five or six times. Mr Hayes said that his drinking had not changed much up to the present time except that he perhaps drank a little less now. Mr Hayes gave evidence that on 26 February 1991 he suffered a heart attack outside a doctor's surgery as he was driving through the centre of Brisbane. He said that after that episode, he drank less for a time, restricting the amount to three or four stubbies a day. However, he then recommenced drinking, and although he knew it was not prudent, was drinking heavily, up to half the amount he had earlier drunk in the time prior to his heart attack. He said that he tried not to drink as much, but that his nerves were deteriorating and in spite of suffering diabetes, he continued to drink. Mr Hayes said that he had presently restricted his drinking to a carton of beer, that is 24 stubbies a week. He gave details of how his drinking had caused serious marital problems over the years, and praised his wife for her understanding and tolerance.

Decision

Reasons for decision

Dr Lobel supported Mr Hayes' application that given the history of onset, his psoriasis met the requirements of the SoP (unspecified), and was war-caused.SUBMISSIONS AND CONCLUSIONS Having heard the evidence, I had to take it into account, together with the submissions, legislation and case law to decide whether Mr Hayes' psoriasis was war-caused within the terms of section 9 of the Veterans' Act. I noted that Mr Hayes' claim for psoriasis was rejected by the Repatriation Commission on 21 April 1997 on the basis that it did "not satisfy the Statement of Principles issued by the RMA in respect of psoriasis" (T2/5). The SoP that was current at the time of the Repatriation Commission was Instrument No.7 of 1996. However, upon appeal to the Veteran's Review Board, the SoP in force and applied when the decision which was handed down on 14 January 1999 was made, (before the decision in Keeley (supra)), was Instrument No.21 of 1998 concerning Psoriasis. I noted also that Mr Wallis submitted that Instrument No.7 of 1996 concerning Psoriasis was the correct SoP to be applied in Mr Hayes' case. I was mindful that I was bound by the principles established in Keeley (supra). In this respect I was mindful of the comments of Madgwick J in Thompson v Repatriation Commission [2000] FCA 939 regarding the application of the SoPs:"In my view … if an intention is imputed to Parliament that, after a veteran (or his or her dependant) has made a claim on one legally relevant set of criteria and embarked on the exercise of a right of review of a claim so based, the substantive rules governing the claim should not be changed to the complainant's disadvantage." Madgwick J also went on to say that:"Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued." Bearing these comments and the principles established in Keeley (supra) in mind, I was bound to apply the SoP concerning psoriasis applicable at the time of the Repatriation Commission decision on 21 April 1997, namely Instrument No.7 of 1996. Mr Hayes gave operational service to his country so I have applied the principles as outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 and sections 120(3) and 120(1) of the Veterans Act in coming to my decision.application of principles in repatriation commission v deledio (1998) 83 fcr 82 I was mindful that the approach in decision-making involving operational service such as Mr Hayes served, was set out by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and was approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82."…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war–caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war–caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

Ratio Decidendi

Legal Principle Established

Similarly, I was satisfied that the Applicant met the definition of alcohol dependence demonstrated from the evidence before me of "the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems." Specifically, these were that the Applicant continued to drink alcohol despite having significant marital and medical problems including hypertension, ischaemic heart disease, diabetes and worsening of his psoriasis. I was satisfied that Mr Hayes was suffering alcohol dependence involving regular consumption of at least the amount specified in Factor 5(e) of Instrument No.21 of 1998 at the time of clinical worsening of his psoriasis. consideration of psychoactive substance abuse or dependence I noted that during the hearing, argument regarding the relevance of Instruments No.5 of 1994 and No.76 of 1998 concerning Psychoactive Substance Abuse or Dependence was raised by the parties. Due regard was given to these submissions at the time, however, I have subsequently formed the opinion that because the Applicant had not claimed psychoactive substance abuse or dependence for the purposes of a disability pension claim with the Repatriation Commission, consideration of whether Mr Hayes' drinking fell within the requirements of the SoPs for psychoactive substance abuse or dependence was not relevant to these proceedings. Accordingly, I have not reproduced those arguments in the context of the SoPs for psychoactive substance abuse or dependence. However, as outlined above, they did have some relevance to the consideration of alcohol abuse and alcohol dependence in relation to Clause 5(e) of the SoP No.21 of 1998 concerning Psoriasis, and I found from the evidence before me that Mr Hayes met Factor 5(e) in Instrument No.21 of 1998.CONCLUSIONS I turned then to consider finally, the application of section 120(3) of the Veterans' Act. I found that the reasonable hypothesis had been raised linking Mr Hayes' psoriasis to his operational war service because on consideration of the whole of the material before me, and as detailed above, I considered his situation fitted the templates in SoPs Instruments No.7 of 1996 and in the alternative, No.21 of 1998. I determined, therefore, on all the evidence before me including that of his doctors, that Mr Hayes' psoriasis was a war-caused disease. Thus, I could not be convinced beyond reasonable doubt that there was no sufficient ground for making that determination, (section 120(1) of the Veterans' Act).DECISION The decision under review is set aside and in substitution, the Tribunal finds that Mr Hayes' psoriasis was war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986 on and from 7 November 1996.I certify that the preceding 73 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior MemberSigned: ..................................................................................... AssociateDate/s of Hearing 20 June 2000 Date of Decision 29 August 2000Counsel for the Applicant Mr C Colborne Solicitor for the Applicant Mr B Williams Counsel for the Respondent N/A Solicitor for the Respondent Mr R Wallis