Hughes and Repatriation Commission
[2014] AATA 431
[2014] AATA 431
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5560
Re
Hughes
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member N Isenberg
Date 1 July 2014 Place Sydney
The decision under review is set aside and in substitution the Tribunal decides that Mr Hughes’ alcohol use disorder is war caused as defined by s 9 of the Veterans’ Entitlements Act 1986 with effect from 1 July 2010, namely three months before the date of application. The matter is remitted to the Repatriation Commission for assessment.
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Ms N Isenberg, Senior Member
CATCHWORDS - VETERANS’ ENTITLEMENTS – operational service – consideration of Statement of Principles – the Tribunal decides that the decision under review is set aside
Legislation
Veterans’ Entitlements Act 1986 (Cth): ss 9, 13(1), 120(1), 120(3), 120A and 196
Administrative Appeals Act 1975 s 37
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Gorton (2001) FCA 1194
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Hill [2002] FCAFC 19
Border v Repatriation Commission (No 2) [2010] FCA 1430
Secondary Materials
Statement of Principles – Instrument No 1 of 2009 as amended concerning Alcohol Use Disorder
REASONS FOR DECISION
S M Isenberg
BACKGROUND
Ronald Hughes (‘the veteran’) served in the Australian Army between 8 July 1970 and 7 February 1972. His “operational service” as defined in the Veterans’ Entitlements Act 1986 (“the VE Act”) was from 26 July 1971 to 8 January 1972 in Vietnam.
Mr Hughes contends that he suffers alcohol dependence which either arose out of, or was materially contributed to, by his operational service.
Mr Hughes seeks review of the decision of the Repatriation Commission dated 24 November 2010, as affirmed by the Veterans’ Review Board (“the VRB”) on 16 October 2012, that refused his claim that his condition is related to service.
LEGISLATIVE BACKROUND
Section 9 of the VE Act provides that a condition is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service, or the condition arose out of, or was attributable to, that service. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
As Mr Hughes had operational service, the determination of whether his claimed condition is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those subsections require me to find that the veteran’s condition was war‑caused, unless I am satisfied beyond reasonable doubt otherwise.
If the Repatriation Medical Authority (“RMA”) is of the view that there is sound medical-scientific evidence that indicates a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (‘SoP’): s 196B. The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service), before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. A factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service: s 196B(14).
Contrary to Mr Hughes’ submission, the Tribunal must apply the SoP currently in force. However if an applicant cannot succeed under that SoP, the Tribunal may consider the SoP in force at the time of the decision of the delegate: Repatriation Commission v Gorton (2001) FCA 1194. In this matter nothing turned on which SoP was applied.
The relevant SoP is No. 1 of 2009 (as amended) in relation to alcohol use disorder. In particular, the applicant relied on factor 6(b) to connect his alcohol use disorder with the circumstances of his service, which provides the veteran must, as a minimum, have:
experience[ed] a category 1A stressor within the five years before the clinical onset of alcohol use disorder
A ‘category 1A stressor’ is defined to mean a severe traumatic event, relevantly, experiencing a life-threatening event.
In the alternative, Mr Hughes submitted, that should I find that he suffered alcohol use disorder prior to the incident claimed to be a category 1A stressor, then he relied on factor 6(m): inability to obtain appropriate clinical management for alcohol use disorder. In view of my findings it was not necessary to consider this alternative hypothesis.
ISSUE BEFORE THE TRIBUNAL
The respondent conceded, after hearing the evidence of Dr Dinnen, consultant psychiatrist, that Mr Hughes suffers alcohol use disorder and that the clinical onset was within five years of his operational service. Therefore the only question for the Tribunal was whether the veteran experienced a category 1A stressor.
EVIDENCE
I had before me the documents lodged with the Tribunal pursuant to s.37 of the Administrative Appeals Act 1975. Mr Hughes and Dr Dinnen gave evidence. The respondent called no evidence.
CONSIDERATION
Where a SoP exists I must apply the test prescribed by s.120A(3) of the VE Act, in four steps, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97].
Steps 1 and 2: is there a hypothesis and is there a SoP?
As discussed above, the hypothesis is that Mr Hughes experienced a category 1A stressor which resulted in him suffering alcohol use disorder and that that condition is therefore war-caused. As noted above, there is a current SoP relevant to the veteran’s claim.
Step 3: does the hypothesis conform to the template in the SoP?
Under clause 5 of the SoP, at least one of the factors set out in clause 6 must be related to the veteran’s relevant service (being in this case, operational service) as set out at [8] above.
This step entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. I am therefore required to consider all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
At this stage I must consider all of the material before me, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases, Stone J likened the decision-maker’s task to striking out a statement of claim as failing to disclose a course of action, where no consideration is given to whether the facts pleaded can be substantiated.
A ‘reasonable hypothesis’ involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364.
Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192
Is there material pointing to Mr Hughes suffering alcohol use disorder?
The Respondent conceded, after hearing the evidence of Dr Dinnen, that the applicant suffers alcohol use disorder.
Is there material pointing to clinical onset of alcohol use disorder within five years of the incident relied on?
The Respondent conceded that the clinical onset of Mr Hughes’ condition was within five years of his operational service. As the evidence was that the incident (discussed below) was shortly before the conclusion of his operational service, I consider that there was evidence pointing to clinical onset within the required timeframe.
Is there material pointing to Mr Hughes experiencing a life-threatening event?
Mr Hughes’ evidence was that he was a cook while on national service in Vietnam. Notwithstanding his trade, he was also obliged to undertake occasional picquet duty in a bunker. One night when he was on picquet duty, shots were fired (‘the incident’). The duty NCO (whose name he no longer recalls) came over to the bunker and asked Mr Hughes why he had not sent up a flare, to which he replied he was waiting for another shot so he could see which direction to send the flare. The NCO seemed to accept Mr Hughes’ explanation and the incident was not mentioned again.
Mr Hughes said he was terrified at the time and was embarrassed by his reaction; he perceived the incident as life threatening as he had no previous combat experience and felt very vulnerable and lacked the personal confidence in his ability to respond or react as required in an event of enemy fire. He said when the shots were fired he felt terrified and panicked and believed his life was in danger.
I accept that from his evidence there is material pointing to Mr Hughes experiencing a life-threatening event.
Therefore, I have come to the view, without making a find of fact, that every essential element of the hypothesis is pointed to by the material before me. A reasonable hypothesis therefore is raised.
Step 4: Can I be satisfied beyond reasonable doubt that Mr Hughes’ condition was not war caused?
This step involves making findings of fact from the material before me. Section 120(1) of the VE Act provides that the claim will succeed, unless I am satisfied beyond reasonable doubt that there are no sufficient grounds for determining that the veteran’s condition was war-caused. In examining this question, I note that there is no onus of proof: see s 120(6) of the VE Act, and Bushell v Repatriation Commission (1992) 175 CLR 408.
Mr Hughes gave evidence that, like everyone, he was rostered to do three-hour picquet duty, which was always undertaken alone, in the bunker at the extremity of the perimeter of the camp. He was given, he said, no real instructions on what to do. He knew he had to ‘respond’ if there was an attack but was unsure at to what that entailed. He had an M60 machine gun, which he had used only once before and he had not been trained in its use. He could not remember if he had flares and a radio but, in any event, had not been shown how to use them. He had heard stories of Vietcong being dressed like members of the South Vietnamese Army. It was ‘guerrilla warfare’ and the enemy was unknown. He was nervous and just hoped nothing would happen.
The veteran’s evidence was that he had been on picquet duty about half a dozen times before the incident, all of which were uneventful. In describing the incident he said that he had been on duty for about one and a half hours when he heard two single gunshots fired from in front of him in the dark, (although in his statement he referred to a single shot only). Mr Hughes said he could see nothing; he froze and panicked; he was scared and very frightened. He heard the NCO approaching on the gravel surrounding the bunker. The NCO asked him why he had not sent up flares when the shots were fired. He told the NCO that he was waiting to see where further shots came from, but in truth he did not know how to use the flares, or even if there were flares there. The NCO accepted his explanation and returned to his post. Mr Hughes remained on lookout in the bunker until he was relieved, after which he went back to his hut and went to bed. He did not mention the incident on handover because he was embarrassed by his response.
From that time onwards he would drink whenever he could. He was terrified whenever he had to do picquet duty again because he still did not know what to do and was too embarrassed to ask. He drank to overcome his fear that there may be shots again. (Prior to the commencement of his service he drank only occasionally, at social gatherings.)
Mr Hughes was only 20 at the time of the incident.
The Respondent did not dispute that the veteran undertook picquet duty and that he did so alone, as he claimed. In neither cross-examination of the veteran nor in submissions did the Respondent contend that the incident did not occur.
Dr Dinnen gave evidence that the history he took from Mr Hughes was of his subjective response to the incident of being terrified because he believed his life was at risk.
Both parties referred me to Border v Repatriation Commission (No 2) [2010] FCA 1430 (‘Border’) where Reeves J examined the various authorities and posed the following question: "How, and to what extent, should the Tribunal examine the feelings evoked in the veteran experiencing that event, to determine whether the event was life threatening within that?" His Honour responds:
It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran's perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, Judged [sic] objectively, from the point of view of a reasonable person in the position of and with the knowledge of the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran's conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, e.g. being threatened with a gun that was in fact unloaded.
Assessing the effect of the incident, Mr Hughes’ immediate reaction was to ‘freeze’, although he did, on his evidence, have the presence of mind to deflect any concerns by the NCO about his failure to respond.
The Respondent submitted that there was no suggestion that the veteran was the target of the shots that were fired, but, applying Border, it is the veteran's perception of the event that is critical. The veteran’s evidence, which I accept, was that the shots were coming from the darkness in front of him. I accept that it was his perception that the shots posed a threat of death, and that that perception was a reasonable one in the circumstances where, as a 20 year old cook, he was undertaking one of his few turns at picquet duty; where he had an apprehension of guerrilla warfare; and he was unfamiliar with the weapon and equipment he had which he was supposed to use to either fire upon the source of a threat or raise the alarm. I do not consider his immediate response of ‘freezing’ or his response of being terrified to be an irrational or baseless one. The Respondent noted that the veteran subsequently allowed his embarrassment to prevent him being better prepared in future, but I do not consider his conduct after the event to be relevant.
I accept that the incident was capable of giving rise to the perception of the threat of death. I therefore find that Mr Hughes experienced a category 1A stressor, in that he experienced a life-threatening event. I also find that the clinical onset of his alcohol use disorder was within the five years of experiencing the life-threatening event.
CONCLUSION
For the above reasons, I am not satisfied beyond reasonable doubt there is no sufficient ground for determining that the veteran’s alcohol use disorder was not war-caused. I must accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Hughes’ condition was war-caused.
DECISION
I set aside the decision under review, and decide that Mr Hughes’ alcohol use disorder is war-caused as defined in s 9 of the VE Act with effect from 1 July 2010, namely three months before the date of application. The matter is remitted to the Repatriation Commission for assessment.
I certify that the 39 (thirty nine) preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed:..........................................................
AssociateDate/s of Hearing 9 May 2014
Date of Decision 1 July 2014
Counsel for the Applicant Ms Mudge
Solicitor for the Applicant M Greg Isolani
Counsel for the Respondent Mr Crowe
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