HUGH JAMES and REPATRIATION COMMISSION - [2013] AATA 376

[2013] AATA 376

Division VETERANS' APPEALS DIVISION

File Number

2012/3512

Re

HUGH JAMES

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 5 June 2013

Place Brisbane
The Tribunal affirms the decision under review.
.........................[SGD]..............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Application of Statements of Principles – Diagnosis of conditions – Clinical onset – Reasonable hypotheses of relevant relationship to service raised – Hypotheses disproved beyond reasonable doubt – Alcohol abuse, dysthymic disorder, hypertension and ischaemic heart disease not war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 120, 120A, 196B
CASES
Border v Repatriation Commission(No 2) [2010] FCA 1430
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles: Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 Statement of Principles: Instrument No. 89 of 2007 Statement of Principles: Instrument No. 27 of 2008 Statement of Principles: Instrument No. 1 of 2009
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND

On 10 June 2010, Hugh James lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), an informal claim for a disability pension for “anxiety/stress”, “heart problems”, “dermatitis” and “high blood pressure.[1] A formal claim was then lodged by Mr James for those conditions on 2 August 2010.[2] He contended that these conditions were related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.
[1] Exhibit 1, T-documents, p. 23(a).
[2] Exhibit 1, T-documents, pp. 24-35.
In response to the claim, the respondent determined, on 23 December 2010, that conditions diagnosed as dysthymic disorder, ischaemic heart disease, hypertension, alcohol abuse and contact dermatitis were not related to his service.[3] On 17 July 2012, the Veterans’ Review Board affirmed the decision.[4] This review relates to Mr James’ claims in relation to dysthymic disorder, ischaemic heart disease, hypertension and alcohol abuse.
[3] Exhibit 1, T-documents, pp. 72-79.
[4] Exhibit 1, T-documents, pp. 147-153.
ISSUES AND SERVICE
Mr James served in the Army from 5 November 1969 until 4 November 1978 and this included a period of eligible war service in the form of operational service in South Vietnam, as provided for in s 7 and s 6C of the Act, respectively, from 15 February 1971 until 10 May 1971. He also served a period of defence service which is not relevant to his claim. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
The standard of proof to be used in determining diagnostic matters under the Act…

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 HUGH JAMES and REPATRIATION COMMISSION

Details

AGLC: HUGH JAMES and REPATRIATION COMMISSION [2013] AATA 376
Case: [2013] AATA 376
Decision Date

CaseChat Overview and Summary

The matter before the court involved a claim by Hugh James against the Repatriation Commission regarding the attribution of certain medical conditions to his service in the armed forces. The specific issue at hand was whether the claimed conditions, namely alcohol abuse, dysthymic disorder, hypertension, and ischaemic heart disease, were caused by or arose out of Mr James' service in Vietnam. The court was tasked with determining the legal and factual basis for these claims, particularly in relation to the events Mr James alleged as the cause of his conditions.

The legal issues revolved around the interpretation and application of section 9 of the relevant Act, which pertains to the causation of conditions arising out of service. The court needed to establish if the shooting incident described by Mr James, which he claimed led to his alcohol abuse and subsequent disorders, actually occurred and if it could be considered a category 1A stressor under the Act. Additionally, the court had to evaluate the temporal relationship between the alleged incident and the onset of the claimed conditions, as well as the medical evidence provided by both parties.

The court found that the shooting incident, upon which Mr James based his claims, did not occur in the manner he described, nor at all. This finding was made beyond reasonable doubt. Consequently, the court ruled that Mr James' alcohol abuse and dysthymic disorder could not be attributed to his war service under a category 1A stressor. The court also determined that dysthymic disorder did not arise from service-related alcohol abuse, and that hypertension and ischaemic heart disease were not related to Mr James' service. The Tribunal affirmed the decision under review, upholding the Repatriation Commission's initial decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the respondent, Mr Bruce Williams submitted that the event referred to by Mr McDonald did not happen in the manner described by Mr James or at all and, accordingly, was not responsible for his alcohol abuse or dysthymic disorder. Alternatively, he conceded that, if the event had occurred as described, Mr James’ alcohol dependence abuse would be war-caused under s 9 of the Act. This concession did not apply to dysthymic disorder which, in his submission, had its clinical onset many years after Mr James’ operational service. Mr Williams submitted that neither hypertension nor ischaemic heart disease were related to Mr James’ service because they had their clinical onset after Mr James had substantially reduced his alcohol consumption and before his dysthymic disorder became manifest. EVIDENCEMr James The event relied upon by Mr James as being responsible for his claimed conditions occurred in about week seven of his 12 weeks in Vietnam. His main duties were as a cook but, from time to time, he undertook other duties. On the day of the event, he was required to “ride shotgun” with the driver of a Land Rover vehicle en route from Nui Dat to Baria with a load of laundry items. The vehicle was unaccompanied for the 20 to 30 minute journey. When passing through an open area of rice paddy-fields, Mr James heard a gunshot. He heard the bullet strike the rear of the vehicle. The driver called to him to “get down” as the speed of the vehicle increased. Mr James described himself at the time as feeling “frightened”, as having “panicked”, as “shaking like a leaf” and as becoming “frozen”. He also said that he started laughing at the time and believed that this was due to “nerves”. On arrival at Baria without further incident, Mr James, the driver and other soldiers inspected the vehicle and located a bullet hole. They all laughed about the incident. The return journey to Nui Dat was uneventful but no special precautions were taken and the Land Rover was accompanied by several other vehicles. On arrival at Nui Dat, Mr James explained to a corporal what had happened and he heard nothing more about it. He understood that the driver had taken the Land Rover to the workshop. Mr James said that he received very little training before he went to Vietnam. He was a cook at Canungra, had no battle efficiency training, had one exercise at Puckapunyal, had one session on a rifle range where the M60 machine gun was demonstrated and received no further training in Vietnam Before enlisting in the army, Mr James limited his alcohol consumption to group activities such as barbecues and parties. After joining the army, he started to take alcohol regularly and on an increasingly heavy basis. On 7 September 2010, he completed a questionnaire[6] which he agreed was accurate in its references to his consumption levels. Therein, he declared that he started to consume alcohol at age 20/21, mostly in the form of beer but with spirits sometimes and wine rarely. He wrote that he had 6 to 8 cans per day before going to Vietnam and 2 to 3 large cans per day in Vietnam. The reasons given were “peer pressure, being tense and nervous, cheap, fear for my life, living continuously in a war, when home drank to forget”. He completed the following table in relation to changes in consumption:[6] Exhibit 1, T-documents, pp. 48-50.

Decision

Reasons for decision

As noted, I have determined beyond reasonable doubt that the shooting incident did not occur. It follows that alcohol abuse and dysthymic disorder did not arise out of and are not attributable to Mr James’ war service on the basis of a category 1A stressor; that dysthymic disorder did not arise out of and is not attributable to his service on the basis of service-related alcohol abuse; that hypertension did not arise out of and is not attributable to his service on the basis of service-related alcohol consumption or dysthymic disorder; and that ischaemic heart disease did not arise out of and is not attributable to Mr James’ service on the basis of service-related hypertension or dysthymic disorder. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2012/3512
Re	HUGH JAMES
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	5 June 2013
Place	Brisbane