Kenneth Morgan and Repatriation Commission

Case [2012] AATA 326

[2012] AATA 326

Division VETERANS' APPEALS DIVISION

File Number(s)

 2010/5599

Re

Kenneth Morgan

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Dr R McRae, Member
Date  31 May 2012
Place Melbourne

1.        The decision under review, being the decision of the Repatriation Commission made 10 September 2009, is set aside.

2.        In substitution for the decision set aside it is decided that the conditions of Major Depressive Disorder, Anxiety Disorder, Alcohol Dependence, Alcohol Abuse and Hypertension suffered by Mr Morgan are war-caused.

........[sgd J W Constance]..................................

Deputy President J W Constance

CATCHWORDS

VETERANS' AND MILITARY COMPENSATION – Injury – Australian Army – whether the conditions of depressive disorder, anxiety disorder, alcohol dependence, alcohol abuse and hypertension were war caused – Deledio – Decision under review set aside

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 9(1), 120(1), 120(3), 120(6), 120A(3) and 120A(4)

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391 (22 April 1998)

Border v Repatriation Commission (2010) 191 FCR 163; [2010] FCA 1430 (17 December 2010)

SECONDARY MATERIALS

Statement of Principles No. 101 of 2007 concerning Anxiety Disorder

Statement of Principles No. 1 of 2009 concerning Alcohol Dependence and Alcohol Abuse
Statement of Principles No. 27 of 2008 concerning Depressive Disorder
Statement of Principles No. 35 of 2003 concerning Hypertension

REASONS FOR DECISION

Tribunal          Deputy President J W Constance

Dr R McRae, Member

Date               31 May 2012

INTRODUCTION

  1. On 10 September 2009 the Repatriation Commission decided that the depressive disorder, anxiety disorder, alcohol dependence and abuse and hypertension suffered by Mr Morgan were not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth). Mr Morgan has applied to the Tribunal to review this decision.

  2. For the reasons which follow the decision under review will be set aside and it will be decided that each of these conditions was war-caused.

    LEGISLATIVE BACKGROUND

    War-caused injury

  3. Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused".  The relevant parts of that section are:

    War caused injuries or diseases

    (1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war caused injury, or a disease contracted by a veteran shall be taken to be a war caused disease, if:

    (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

    (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

    …

    (e)the injury suffered, or disease contracted, by the veteran:

    (i)     was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

    (ii)     was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service,

    and,…

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AGLC
Kenneth Morgan and Repatriation Commission [2012] AATA 326
Case
[2012] AATA 326
Decision Date

CaseChat Overview and Summary

The applicant, Kenneth Morgan, was involved in a legal dispute with the Repatriation Commission regarding the causation of various medical conditions he claimed were war-related. These conditions included depressive disorder, anxiety disorder, alcohol dependence, alcohol abuse, and hypertension, all of which he attributed to his service in the Australian Army during the Vietnam War. The case was heard in the Federal Court of Australia.

The primary legal issues before the court were whether Mr Morgan's claimed medical conditions were war-caused under the relevant legislative framework. Specifically, the court had to determine if the conditions resulted from his operational service, whether they arose out of or were attributable to his war service, and if they were contributed to or aggravated by his war service. Additionally, the court needed to assess whether there was a reasonable hypothesis connecting these conditions with Mr Morgan's service in Vietnam and if the hypothesis was consistent with the applicable Statement of Principles.

The court examined the evidence and concluded that the material before it did raise a reasonable hypothesis connecting Mr Morgan's depressive disorder with his operational service in Vietnam. This conclusion was based on the evidence of Mr Morgan and medical experts, which suggested that his depressive disorder arose from or was aggravated by the severe traumatic events he experienced during his service. The court found that Mr Morgan's claim was consistent with the template provided in the relevant Statement of Principles concerning anxiety disorder. Consequently, the court determined that Mr Morgan's depressive disorder was war-caused.

The court also found that Mr Morgan's generalised anxiety disorder was war-caused. The evidence indicated that he experienced severe traumatic events during his service, which were consistent with the factors outlined in the applicable Statement of Principles. The court was satisfied that Mr Morgan's anxiety disorder was connected to his operational service in Vietnam and that the hypothesis was reasonable and consistent with the relevant Statement of Principles.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow the decision under review will be set aside and it will be decided that each of these conditions was war-caused.LEGISLATIVE BACKGROUNDWar-caused injury Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:War caused injuries or diseases(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war caused injury, or a disease contracted by a veteran shall be taken to be a war caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…(e)the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease; but not otherwise.Standard of proof Section 120 relevantly provides:Standard of proof(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war caused disease or that the death of the veteran was war caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note: This subsection is affected by section 120A.…(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war caused injury or a defence caused injury;(b)that the disease was a war caused disease or a defence caused disease; or(c)that the death was war caused or defence caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.…(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.Reasonableness of hypothesis to be assessed by reference to Statement of Principles

Evidence

Evidence Before The Court

Mr Morgan lived with Mr Birrell and his wife in 1972-3.Evidence of Mr Amos[9][9] Transcript 7.3.12 and exhibit A13. Mr Amos served in South Vietnam as a Corporal Armourer, 3RAR, in 1967-68. Mr Amos was aware of the practice of servicemen modifying weapons themselves. He considered this to be a dangerous practice and modified a small number of weapons himself by changing the sear. He reversed all modifications before he left South Vietnam.Writeway Research Service Pty Ltd report dated 3 September 2010[10][10] Exhibit R4. Writeway researched each of the incidents referred to by Mr Morgan. It concluded that there were four recorded incidents similar to that described by Mr Morgan and referred to in these reasons as the helicopter incident. The incident most resembling the incident described occurred on 23 January 1970. The report quotes from a publication “The RAAF in Vietnam” which reads, in part:‘Capping off this month was a ‘sniffer’ mission on 23 Jan 70, in which Bushranger 72 engaged the source of enemy ground fire at the sensor aircraft. An enemy defector subsequently disclosed to an interrogator that up to six (6) Viet Cong had been killed or wounded in this incident’.[11][11] Exhibit R4 p.11. None of the records indicate that any of the “Bushranger” aircraft carried passengers. There is no documentary evidence that Mr Morgan, Mr Dadd or Mr Blair were involved in the incident. The report’s Summary reads in part:28. Summary. No documentary evidence could be found to support Mr Morgan’s claim. Although it does appear that a ‘sniffer’ mission conducted on 23 Jan 70 most likely resembles that mission described by Mr Morgan. It should be noted that while Mr Morgan has said that there were four (4) gunships on the mission which he flew on, and they all fired in action, the report in “The RAAF in Vietnam: page 176 said that only one aircraft ‘Bushranger 72’ engaged in the enemy. While Mr Morgan has produced a photograph, taken from inside a gunship looking out, as evidence to support his claim, 9 SQN personnel consulted did not support his claim.29. Mr Morgan could not have held down the trigger of his SLR to fire in an automatic mode, as that particular weapon does not have that capability. The trigger must be activated every time that a round is fired. Therefore, to fire 15 rounds would have required him to squeeze the trigger 15 times....31. According to 9 SQN RAAF personnel, it is highly unlikely that Mr Morgan would have been on a ‘sniffer’ mission. There is some support for this statement in that the ‘Bushranger’ was already 11% over maximum take-off weight when armed and with the crew on board. To take additional personnel on such mission’s would have imposed an even greater stress on the aircraft which would have increased the safety risk of the mission. [12][12] Exhibit R4 p.12. In relation to the sentry duty incident the Writeway report stated that the large tip used by Allied Forces was controlled by the US Army and was located approximately 1.2 kms outside the Australian Base.[13][13] Exhibit R4 p.13.

Decision

Reasons for decision

In view of the evidence referred to in the preceding two paragraphs we are not satisfied beyond a reasonable doubt that there is no sufficient ground for making the determination that Mr Morgan’s depressive disorder was war-caused.Conclusion In accordance with section 9 of the Act we determine that the Major Depressive Disorder presently suffered by Mr Morgan was war-caused.CONSIDERATION OF THE GENERALISED ANXIETY DISORDER CLAIMIssues for determination The issues arising for determination are the same as those set out in relation to the Major Depressive Disorder claim.Issue 1: did Mr Morgan render “operational service” and if so, when? We have made this finding earlier in these reasons.Issue 2: does Mr Morgan suffer from Generalised Anxiety Disorder? On the basis of the evidence of Dr Collier and Dr Strauss we are satisfied on the balance of probabilities that Mr Morgan suffers from Generalised Anxiety Disorder. The Commission agrees that Mr Morgan presently suffers this condition.Issue 3: considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service? Having considered all of the material we determine that it points to the following hypothesis connecting the generalised anxiety disorder with the circumstances of Mr Morgan’s operational service:oMr Morgan experienced each of the six incidents whilst serving in South Vietnam;oeach of the incidents caused him to suffer Generalised Anxiety Disorder or aggravated an existing disorder;ohe suffered the condition whilst in South Vietnam or shortly after his return to Australia;ohe has continued to suffer from the condition. We have reached this determination having considered the evidence of Mr Morgan as to the effect each of the incidents had upon him. We take into account also the evidence of Dr Strauss that the generalised anxiety disorder developed while Mr Morgan was serving in South Vietnam.Issue 4: is there a relevant Statement of Principles in force? We are satisfied that the relevant Statement of Principles is No.101 of 2007 concerning Anxiety Disorder. This is not in dispute. Issue 5: is the hypothesis consistent with the “template” within the Statement of Principles and therefore a reasonable one? Clause 5 of the Statement provides:Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Clause 6 provides in part:The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:(a)for generalised anxiety disorder or anxiety disorder not otherwise specified only:…(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder;… Clause 9 relevantly provides:For the purposes of this Statement of Principles:“a category 1A stressor” means one or more of the following severe traumatic events: (a)experiencing a life-threatening event;…

Ratio Decidendi

Legal Principle Established

In the Claim for Disability Pension lodged by Mr Morgan on 24 June 2008,[26] he referred to having experienced some extreme stressors in South Vietnam where he felt his life was threatened. He did not specify particular events in the application form.[26] Exhibit A1 p22.CONSIDERATION OF THE MAJOR DEPRESSIVE DISORDER CLAIM In Repatriation Commission v Deledio[27] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service:1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3.If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.[27] (1998) 83 FCR 82, 97; [1998] FCA 391 (22 April 1998).Issues for determination We have to determine the following issues:1)Did Mr Morgan render "operational service” and if so, when?2)Does Mr Morgan suffer from major depressive disorder?3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service?4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?6)If so, considering section 120(1) are we satisfied beyond a reasonable doubt that the disease suffered by Mr Morgan was not war-caused?Determination of the issuesIssue 1: did Mr Morgan render “operational service” and if so, when?