John Lightowlers and Repatriation Commission - [2014] AATA 80

[2014] AATA 80

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/4183

Re

John Lightowlers

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey
Dr Michael Couch, Member

Date 21 February 2014

Place Sydney
The Tribunal affirms the decision under review.

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Senior Member J F Toohey
CATCHWORDS – VETERAN’S ENTITLEMENTS – operational service – whether alcohol dependence war-caused – Vung Tau – scare charges – applicant witness to assault – whether category 1A or category 1B stressor – whether reasonable hypothesis raised – decision under review affirmed
Legislation
Veterans Entitlements Act 1986 ss s 120A, 120(1), 120(3), 120(4)
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82
Kaluza v Repatriation Commission [2011] FCAFC 97
Bushell v Repatriation Commission [1992] HCA 47
Byrnes v Repatriation Commission [1993] HCA 51
Border v Repatriation Commission (No 2) [2010] FCA 1430
Hunter and Repatriation Commission [2011] AATA 514
Button and Repatriation Commission [2010] AATA 860
REASONS FOR DECISION
Senior Member J F Toohey
Dr Michael Couch, Member
Background

Mr John Lightowlers joined the Royal Australian Navy in July 1969 when he was 15. He was discharged in October 1972. He was on board the HMAS Sydney when it travelled to Vung Tau in Vietnam in February and March 1971. In that time he had 17 days of operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
Mr Lightowlers is now aged 59. He suffers from bilateral sensorineural hearing loss, lumbar spondylosis and osteoarthritis of the right knee, all of which the respondent has accepted are related to his service.
When these proceedings commenced, Mr Lightowlers sought review of a decision of the Veterans Review Board (VRB) which included the decision that he did not suffer from service-related post-traumatic stress disorder (PTSD), depressive disorder or alcohol abuse.
It is now agreed that Mr Lightowlers suffers from alcohol dependence which had its clinical onset on 20 October 1972, being the date of his discharge from the Royal Australian Navy. It is agreed that he does not suffer from PTSD or depressive disorder.
The issue before us is whether Mr Lightowlers’ alcohol dependence is related to his service. He claims it is, because of two incidents in which he was involved while in Vung Tau harbour.
Legislation
In determining whether an injury or disease is related to a veteran’s operational service, the standard of reasonable hypothesis applies. By that standard, we must determine a condition to be war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1) of the Act. We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting the condition with the veteran’s service: s 120(3).
In all other matters, including the diagnosis of any medical condition, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
Whether a hypothesis is reasonable is assessed in accordance with any relevant Statements of Principles (SOPs), or determinations or declarations under…

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 John Lightowlers and Repatriation Commission

Details

AGLC: John Lightowlers and Repatriation Commission [2014] AATA 80
Case: [2014] AATA 80
Decision Date

CaseChat Overview and Summary

John Lightowlers sought to have his alcohol dependence recognised as being related to his service in the Vietnam War, specifically during his time in Vung Tau harbour. The Repatriation Commission denied his claim, prompting Lightowlers to appeal to the Federal Court. The appeal centred on whether Lightowlers' alcohol dependence could be linked to a traumatic event he experienced during his service in Vung Tau harbour, specifically whether he encountered a life-threatening situation. The court needed to determine if the evidence presented supported the hypothesis that Lightowlers experienced a category 1A stressor, which would necessitate a life-threatening event, or a category 1B stressor, which involves exposure to extreme danger or horror.

The court examined whether Lightowlers experienced a life-threatening event by considering both subjective and objective elements. It was established that the perception of an event as life-threatening is critical, and if this perception is reasonable, it would be sufficient. The court noted that the evidence did not support Lightowlers' claim that a scare charge exploded close to the ship, and his perception of the event was not corroborated by other evidence. Captain Rothwell's report and testimony indicated that the ship was anchored at the time and engaged in sweeping the hull and anchor cables, making it unlikely that scare charges were thrown from the ship. The ship's log also confirmed that only one charge was thrown, and that occurred much later when the ship was underway and leaving the harbour.

Based on the evidence presented, the court concluded that it was not satisfied beyond reasonable doubt that Lightowlers experienced a life-threatening event. The detailed report and oral evidence from Captain Rothwell made it highly unlikely that the events Lightowlers described occurred as he claimed. The court found that the evidence did not support a reasonable hypothesis connecting Lightowlers' alcohol dependence to the events in Vung Tau harbour, and thus, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

According to Captain Rothwell, intelligence reports for the area encompassed all incidents, enemy contacts and security and were shared by the allied intelligence sections. The Intelligence Summary (INTSUM) for the day showed that three prisoners were taken on Long Sun island at 1600 but, he said, if they were transported anywhere, it would have been to Ba Ria to the east, “well north” of where HMAS Sydney was anchored. He could not exclude the possibility that Vietnamese were being escorted somewhere but, if so, he could make no sense of where they might have been going. He found no record in the INTSUM of missiles being fired in the vicinity that day. Is Mr Lightowlers’ alcohol dependence related to his operational service? The answer to this question depends ultimately on whether Mr Lightowlers experienced a category 1A or 1B stressor while in Vung Tau harbour. The third step in the Deledio test does not require proof of the facts; it requires us to determine whether the material before us “points to some fact or facts (‘the raised facts’) which support the hypothesis”: Bushell v Repatriation Commission [1992] HCA 47; Byrnes vRepatriation Commission [1993] HCA 51. Did Mr Lightowlers experience a category 1A stressor? Whether a person experiences a life-threatening event requires consideration of both subjective and objective elements. It is the effect of the event and not the threat itself that has to be assessed, and a person’s perception is critical; if the perception that an event is life-threatening is reasonable, it will be so for the purposes of the SoP: Border v Repatriation Commission (No 2) [2010] FCA 1430; Hunter and Repatriation Commission [2011] AATA 514. The use of scare charges within range of HMAS Sydney while in Vung Tau harbour on 25 February 1971 is clearly raised by the material before us. There is evidence that Mr Lightowlers suffered from claustrophobia as a young man including while serving on HMAS Sydney which undoubtedly would have affected his perception of events including any loud noise near to the ship. There is material pointing to the fact that the boiler room was below the waterline where the noise of an explosion could be very loud. The material points to an incident which might give rise to the perception that his life was at risk. We find that a reasonable hypothesis connecting Mr Lightowlers’ alcohol dependence with the events in Vung Tau harbour is raised by the material before us. Turning to the fourth Deledio step, we are now required to determine whether we are satisfied, beyond reasonable doubt, that Mr Lightowlers did not experience a life-threatening event. For the following reasons we are so satisfied. Mr Lightowlers’ evidence that a scare charge exploded close enough to the ship to cause the kind of explosion he says he heard is not supported by any other evidence before us, and is at odds with what is before us. The extensive detail in Captain Rothwell’s report and oral evidence makes it highly unlikely that scare charges were thrown from the HMAS Sydney during the time it was anchored in the harbour. Around the time, during the morning, that Mr Lightowlers says he heard the explosion, the evidence is that the ship was anchored and its divers likely to have been sweeping the hull and anchor cables in which case scare charges would not have been thrown from the ship. The ship’s log shows clearly that only one charge was thrown from the ship, and that was much later in the day, when it was underway and leaving the harbour.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4183
Re	John Lightowlers
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J F Toohey Dr Michael Couch, Member
Date	21 February 2014
Place	Sydney