Hughes and Repatriation Commission

Case [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.

.......................................................................

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

  1. 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.

  2. Mr Hughes contends that he suffers alcohol dependence which either arose out of, or was materially contributed to, by his operational service. 

  3. 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

  4. 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.

  5. 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.

  6. If the Repatriation Medical Authority (“RMA”) is of the view that there is sound medical-scientific evidence that…

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AGLC
Hughes and Repatriation Commission [2014] AATA 431
Case
[2014] AATA 431
Decision Date

CaseChat Overview and Summary

In the case of Hughes and the Repatriation Commission, the primary issue before the court was whether Mr. Hughes' alcohol use disorder was caused by a category 1A stressor during his operational service. The respondent conceded that Mr. Hughes suffered from alcohol use disorder and that the clinical onset of this condition occurred within five years of his operational service. Therefore, the central legal question was whether Mr. Hughes experienced a category 1A stressor during his service.

The court examined the evidence and applicable legal framework, including the test prescribed by section 120A(3) of the Veterans' Entitlements Act (VE Act) and the relevant Statement of Principles (SoP). The court had to determine if the hypothesis that Mr. Hughes' alcohol use disorder was war-caused conformed to the template in the SoP. This required the court to consider all the material before it, without making any findings of fact at this stage. The court relied on the medical evidence, including the testimony of Dr. Dinnen, and noted that the history provided by Mr. Hughes to a medical practitioner could constitute material for this purpose. The court also had to ensure that the hypothesis was consistent with the factors set out in the SoP, with all essential elements of the factors being pointed to by the material.

The court found that the evidence was sufficient to establish that Mr. Hughes suffered from alcohol use disorder and that the onset of this disorder was within the required timeframe. Consequently, the court was not satisfied beyond reasonable doubt that there was no sufficient ground for determining that the veteran's alcohol use disorder was not war-caused. As a result, the court determined that Mr. Hughes' condition was war-caused. The decision under review was set aside, and the matter was remitted to the Repatriation Commission for assessment.

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 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?

Decision

Reasons for decision

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 2014Counsel for the Applicant Ms Mudge Solicitor for the Applicant M Greg IsolaniCounsel for the Respondent Mr Crowe

Ratio Decidendi

Legal Principle Established

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?