Holmes and Repatriation Commission (Veterans' entitlements) - [2019] AATA 640

Holmes and Repatriation Commission (Veterans' entitlements) [2019] AATA 640 (29 March 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/4489
Re:Keran Holmes
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:29 March 2019
Place:Brisbane

The decision under review is set aside and the matter is remitted to the Respondent for appropriate action.
..........................[Sgd].............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – whether death of veteran defence-caused – alcohol use disorder – SoP 49 of 2017 – having a clinically significant disorder of mental health – Category 1A stressor – Category 1B stressor – Category 2 stressor – death of a significant other – inability to obtain appropriate clinical management – whether Factors caused or contributed to death – whether Factor arose out of, or was attributable to service – reviewable decision set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Boyes and Repatriation Commission [2004] AATA 17
Brew v Repatriation Commission (1999) 94 FCR 80
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Lee v Minister of Pensions (No 2) (1948) 2 War Pensions Appeals R 1901
O’Brien and Repatriation Commission [2003] AATA 525
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission vMilenz (2006) 93 ALD 107
Repatriation Commission v Money [2009] FCAFC 11
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Wedekind [2000] FCA 649
Repatriation Commission v Wellington [1999] FCA 1552
Roncevich v Repatriation Commission (2005) 222 CLR 115
Somerset v Repatriation Commission [2005] FCA 1399
Trotter and Repatriation Commission [2003] AATA 766
SECONDARY MATERIALS
Statement of Principles No 2 of 2009 – Alcohol Dependence and Alcohol Abuse
Statement of Principles No 30 of 2014 – Alcohol Use Disorder
Statement of Principles No 24 of 2016 – Adjustment Disorder
Statement of Principles No 49 of 2017 – Alcohol Use Disorder
REASONS FOR DECISION
Deputy President J Sosso
29 March 2019
INTRODUCTION

Mr Jeffrey Gordon Holmes (the veteran), who was born in December 1951, rendered service in the Royal Australian Air Force (RAAF) from 8 January 1968 until 22 February 1974 – Exhibit 1 T3 p. 1. The veteran rendered eligible defence service from 7 December 1972 until his discharge. In the period 17 February 1972 to 6 February 1974 the veteran served at RAAF Butterworth in Malaysia.
The veteran was posted to the following locations – Exhibit 4:
(a)RAAF School of Technical Training    Wagga Wagga           8 January 1968
(b)481 Squadron  Williamtown               9 July 1970
(c)76 Squadron  Williamtown               12 July 1971
(d)75 Squadron  Butterworth                17 February 1972
(e)Base Squadron  Amberley  6 February 1974
The veteran’s first mustering was as an Apprentice and from 25 June 1970 he served as a Armament Fitter. The veteran rose through the ranks and when he was discharged he had achieved the rank…

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: [2019] AATA 640
Decision Date: 29 March 2019

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, the widow of a veteran, regarding a decision by the Repatriation Commission. The Applicant contended that the veteran's death, which was attributed to an alcohol use disorder, was defence-caused. Specifically, the Applicant argued that the veteran's alcoholism stemmed from either physical attacks, assaults, and bullying during his service, or from the Royal Australian Air Force's failure to provide appropriate clinical management for his alcohol abuse. The case was heard by Deputy President Sosso P.

The primary legal issues before the court were whether the veteran suffered from an alcohol use disorder as defined by the relevant Statement of Principles (SoP 49 of 2017), and if so, whether any Factors contributing to his death were related to his eligible defence service. This involved determining if the veteran experienced Category 1A, 1B, or 2 stressors, such as physical attacks, bullying, or the death of a significant other, and whether his inability to obtain appropriate clinical management arose out of or was attributable to his service. The court also had to consider which SoP was applicable, noting that the decision should be made by reference to the SoP in force at the time of the decision, unless an accrued right under an earlier SoP was established.

Deputy President Sosso P reasoned that the veteran's service records indicated he struggled to adapt to the strict RAAF environment from a young age, exhibiting unhappiness, apprehension towards authority, and a lack of determination. While there were some improvements noted later in his service, the records suggested he was a troubled individual with undisclosed personal problems. The court found that the inability to obtain appropriate clinical management for the veteran's condition arose out of, or was attributable to, his defence service at Butterworth.

Consequently, the decision under review was set aside, and the matter was remitted to the Repatriation Commission for appropriate action.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant contends that the veteran’s alcoholism was related to his eligible defence-service. The condition is said (Applicant’s Statement of Facts and Contentions (ASFC) para 6) to have arisen from either:(a)physical attacks, assaults and bullying during the veteran’s service, commencing at Recruit School to the time he was discharged; or(b)the RAAF failed to provide appropriate clinical management for the veteran’s alcohol abuse.BACKGROUND The veteran was born in Brisbane, but as a child lived in a number of places because his father served in the RAAF. The veteran’s father was said to be a heavy drinker, and regularly visited the Sergeants’ Mess – Exhibit 1 T11 p. 74. During his secondary school years, the veteran attended a boarding school (Toowoomba Grammar) and went immediately from secondary school to serving in the RAAF at the RAAF School of Technical Training at Wagga Wagga – Exhibit 1 T11 p. 72, T16 p. 95, T26 p. 146. The veteran was only 16 years old when he enlisted. In his entry medical examination of December 1967, he was recorded as being only 15 years of age and it was noted that he was 5’ 10’’ in height and weighed 135 lb, or less than 10 stone – Exhibit 1 T3 p. 3. In short when the veteran first enlisted he was very young and slightly built. A perusal of the contemporary service records of the veteran whilst undergoing his apprenticeship, disclose that he was not adapting to his new environment very well. The records suggest that the veteran was an unhappy teenager who found the strict regime of RAAF life difficult to endure. In the first Half-Yearly Progress Report for the period January 1968 to July 1968, it was observed by the Squadron Leader – Exhibit 4:“He will have to concentrate and work harder if he is to complete his apprenticeship.” The next Half-Yearly Progress Report disclosed no perceived improvement in the veteran’s attitude and performance – Exhibit 4:“App Holmes would do well to realise this opportunity he now has of learning a trade. This could then result in an improved attitude to his studies and may also give him a better personality.” By the time the January 1969 to July 1969 report was completed, a distinct pattern had developed. The Squadron Leader observed – Exhibit 4:“Apprentice Holmes is not making a determined effort to learn a trade and his results prove this. He is easily led and is apprehensive towards authority. He participates in a range of sports. His ability to successfully complete his apprenticeship is in doubt.” By the end of 1969 there were perceived improvements – Exhibit 4:“Apprentice Holmes does not rate more than a satisfactory assessment over-all. However, he has shown improvement in most areas since his last report. The main area in which he could improve further is in his personal attitude and determination.” The final apprenticeship report again suggests that the veteran was a troubled individual with undisclosed personal problems – Exhibit 4:“Apprentice HOLMES has not settled down in his final terms work. This may have been due to personal worries which have affected his studies. After graduation he may settle down.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I therefore find that the inability to obtain appropriate clinical management, arose out of, or was attributable to, the veteran’s defence-service at Butterworth.DECISION The decision under review is set aside and the matter is remitted to the Respondent for appropriate action.

Ratio Decidendi

Legal Principle Established

Subsection 10(1) of SoP 49 of 2017 provides that the existence in a person of any Factor referred to in s 9, must be related to the relevant service rendered by the person. A Factor causing, or contributing to, a death is related to service rendered by a veteran it satisfies one or more of the tests specified in s 196B(14) of the Act.CONSIDERATIONIntroduction The Tribunal must now consider SoP No 49 of 2017. The starting point is to determine the veteran’s kind of death, and then determine if his death falls within the meaning of “alcohol use disorder” in SoP 49 of 2017. If the veteran’s death falls within the definition, the next step is to consider the Factors that must exist, which in this instance are set out in s 9 of the SoP. If one or more Factors exist, the Tribunal must then ascertain if that Factor or those Factors are related to the relevant service rendered by the veteran – s 10(1) of SoP 49 of 2017. Two other matters need to be ventilated. First, the Tribunal is required to approach the question of the Applicant’s entitlement to receive the claimed pension by reference to the SoP in force at the time it makes its decision – Repatriation Commission v Gorton (2001) 110 FCR 321. If, however, a negative answer is evinced, then it may be necessary to consider if the SoP that was in force at the time when the Respondent first rejected the Applicant’s claim. This inquiry is only necessary if it is contended that an applicant has an accrued right under the earlier SoP. In this matter there was another SoP in force when the Respondent first rejected the Applicant’s claim on 1 September 2016, namely SoP No 2 of 2009 as amended by SoP No. 30 of 2014. This SoP was also in force when the Board made its decision on 13 July 2017. Unfortunately, as is often the case in veterans’ entitlement matters, some confusion can arise due to the remaking of SoP’s and with the consequent changes in section numbering and wording. No submission was made in this matter that the Applicant had an “accrued right” under SoP 2 of 2009, but where appropriate I have also inserted references to the comparable provisions in SoP 2 of 2009. Second, the question of whether the veteran was suffering from a service-related adjustment order is discussed below. In order to deal with that question reference will be made to the SoP dealing with adjustment disorder, namely SoP 24 of 2016. One matter needs to be addressed at the outset. SoP No 49 of 2017 defines a clinically significant disorder of mental health by reference to 25 named mental health conditions. One of those conditions is adjustment disorder. In comparison when SoP No. 2 of 2009 was first promulgated it referred to alcohol dependence and alcohol abuse. The description of those terms was made by reference to the diagnostic criteria in DSM-IV-4, and there was no reference to specific mental health conditions. This SoP was significantly amended by SoP No. 30 of 2014, which deleted the terms alcohol dependence and alcohol abuse and replaced them with the term “alcohol abuse disorder”. This term was defined by reference to the diagnostic criteria derived from DSM-5. This definition is mirrored in SoP No. 49 of 2017.