Henderson and Repatriation Commission - [2001] AATA 397

DECISION AND REASONS FOR DECISION [2001] AATA 397

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/879

VETERANS' APPEALS DIVISION       )         No N1999/1554
           Re      James Victor Henderson
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date11 May 2001
PlaceSydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal: 1. Affirms the Repatriation Commission's decision of 14 February 1998 in relation to hypertension. 2. Sets aside the decision of the Veterans' Review Board of 14 July 1999 and in substitution therefor decides that: (a) Mr Henderson suffers from the conditions of generalised anxiety disorder and alcohol abuse and these conditions are war-caused; and (b) Disability Pension is assessed at 60 per cent of the General rate and is payable from and including 19 December 1997.
  .................[sgnd].....................
  Ms SM Bullock
  Senior Member
Catchwords
VETERANS' AFFAIRS - Disability Pension - Operational Service - Reasonable Hypothesis - Hypertension - Generalised Anxiety Disorder - Alcohol Abuse - Intermediate Rate

Legislation
Veterans' Entitlements Act 1986 ss 5D, 9, 13, 23, 120, 120A

Authorities
Deledio v Repatriation Commission (1997) 47 ALD 261
Borrett v Repatriation Commission [2000] FCA 1829

REASONS FOR DECISION

11 May 2001 Ms SM Bullock, Senior Member

This is an application for review by the Applicant, Mr James Victor Henderson, of decisions made by the Repatriation Commission ("the Commission") and the Veterans' Review Board ("the Board"). Firstly, on 14 February 1998 (T2 – N1999/879), the Commission refused a claim for hypertension which was affirmed by the Board on 22 March 1999. The second decision is that of the Board, made on 14 July 1999, which set aside a decision of the Commission dated 13 May 1998 and substituted its decision that anxiety disorder with no alcohol dependence was war-caused, with pension being assessed at 40 per cent of the General rate, with effect from and including 19 December 1997 (T2- N1999/1554).
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Sydney on 12 February 2001. Mr Henderson was represented by Mr N Dawson of Counsel. Mr Henderson provided oral evidence at hearing, as did his wife, Mrs Maureen Henderson. The Respondent, the Commission, was represented by Ms G Pacey, Solicitor. Taken into evidence were two sets of documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents, T1-T20, N1999/879 and T1-T13, N1999/1554) and the following exhibits:
Exhibit Number    Description Date
T1-T20 Section 37 Statement and Documents (N1999/879) Various
T1-T13 Section 37 Statement and Documents (N1999/1554) Various
A1      Statements of Mr J Henderson     21 January 2000 11 September 2000 28 December 2000
A2      Statement of Mrs Maureen Anne Henderson     11 September 2000
A3      Report of Dr B Keshava, Consultant Psychiatrist         27 March 2000
R1      Report and Supplementary Report of Dr D Richards, Consultant Cardiologist       14 November 1999 25 November 1999
R2      Report and letter of Dr Y Skinner, Consultant Psychiatrist     17 December 1999 21 December 1999
R3      Report of Dr T Anderson, Consultant Occupational Physician 13 December 1999

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 Henderson and Repatriation Commission

Details

AGLC: Henderson and Repatriation Commission [2001] AATA 397
Case: [2001] AATA 397
Decision Date: 11 May 2001

CaseChat Overview and Summary

The case involved Mr. Henderson, who was appealing against the Repatriation Commission's decision regarding his eligibility for a disability pension. The dispute centred on whether Mr. Henderson's hypertension, generalised anxiety disorder, and alcohol abuse were service-related, and if so, whether they warranted a pension at an intermediate rate. The matter was heard in the Administrative Appeals Tribunal of Australia. The Tribunal was tasked with determining the validity of Mr. Henderson's claims and the appropriate pension rate, if any, based on the evidence presented.

The primary legal issue before the Tribunal was whether Mr. Henderson's conditions were reasonably attributable to his operational service, and if so, whether they warranted the intermediate pension rate. The Tribunal had to weigh the evidence provided by Mr. Henderson and his wife regarding his pre- and post-service behaviour and the onset of his conditions. The Tribunal also needed to consider whether there was a reasonable hypothesis that Mr. Henderson's service caused or materially contributed to his current conditions.

The Tribunal concluded that it was reasonably hypothesised that Mr. Henderson's service caused or materially contributed to his hypertension, generalised anxiety disorder, and alcohol abuse. The Tribunal accepted that Mr. Henderson's behaviour changed significantly following his return from Vietnam, with increased irritability, aggression, and alcohol consumption. The Tribunal found that Mr. Henderson's wife's evidence corroborated his account of the onset of his conditions and the impact of his service on his mental health. Based on these findings, the Tribunal determined that Mr. Henderson was entitled to a disability pension at the intermediate rate.

The Tribunal ordered that Mr. Henderson be paid a disability pension at the intermediate rate, reflecting the Tribunal's determination that his conditions were reasonably attributable to his operational service. The decision underscored the importance of considering both the veteran's account and corroborative evidence when assessing claims related to service-induced disabilities.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the time of hearing, Mr Henderson advised that he and his wife were going on a motoring holiday in Tasmania. Mr Henderson stated that he does not have any hobbies, he does not garden or play sport. He used to attend Rugby League matches but no longer feels able to attend. He also used to read for enjoyment but does not often engage in this activity now. Similarly, Mr Henderson used to enjoy woodwork but stated that he cannot become motivated any more. Perhaps once in 12 months he might undertake some woodwork. Mr Henderson does not like using public transport because of his inability to cope with crowds of people. His leisure activities mainly involve watching television or doing odd jobs about the house. Evidence of Mrs Henderson Mrs Henderson told the Tribunal that she and Mr Henderson married just prior to his tour of duty in Vietnam. They have now been married for approximately 33 years. At the time of their marriage, Mrs Henderson described her husband as an easy going, happy man. He drank beer occasionally before going to Vietnam but this was minimal, Mrs Henderson stated. Following his return from Vietnam, Mr Henderson had changed greatly, Mrs Henderson stated. He was "very cranky, stressed and was drinking at home". This pattern of behaviour was completely different to his pre-Vietnam behaviour. Mrs Henderson described situations where very little or minor things would upset Mr Henderson. He would become extremely cross with their eldest son for no apparent reason, had nightmares, was irritable, perspiring profusely in bed and shouting out in his sleep. Mrs Henderson would often have to wake her husband up to stop these night-time outbursts. This pattern of behaviour at night has continued once or twice per week, which is reduced somewhat from such behaviour immediately post-Vietnam. Mrs Henderson told the Tribunal that she and the children developed coping mechanisms and strategies for dealing with Mr Henderson's irritability and aggression, by walking away from him and learning not to engage in arguments with him. Mrs Henderson further described her husband's post-Vietnam demeanour as moody. If he has been drinking, his moodiness is worse. Mrs Henderson believes that the consumption of alcohol eases her husband's stress. Mrs Henderson stated that while in the Army and just after returning from Vietnam, her husband would drink in the Sergeant's Mess during the day and then at night after work, he would continue to drink alcohol. When the children were very young, the family situation was very tense but during the early 1990's, Mrs Henderson's impression was Mr Henderson's drinking was reduced. This reduction, Mrs Henderson believes, occurred because he was less stressed at work. Currently, Mr Henderson is drinking every night, at least six stubbies of beer. Mrs Henderson stated that she does not believe that her husband realises how much he is drinking and often denies that he has consumed very much alcohol. Mrs Henderson related a recent experience when Mr Henderson's daughter told her father that he had already consumed six stubbies of beer and should cease. Mr Henderson denied that he had consumed that much alcohol and in fact went on to drink more.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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