Leitch and Repatriation Commission (Veterans' entitlements) - [2021] AATA 578

Leitch and Repatriation Commission (Veterans' entitlements) [2021] AATA 578 (18 March 2021)
Division:VETERANS’ APPEALS DECISION
File Number(s): 2017/4432
Re:Geoffrey Leitch
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:S Taglieri SC, Member
Date: 18 March 2021
Place:Hobart

Decision Affirmed

....................[sgd].................................
Sandra Taglieri SC, Member
Catchwords
Veterans’ entitlements – eligibility for increase in pension rate – whether a disease or injury is defence-caused – alcohol use disorder – generalised anxiety disorder – temporal requirements of Statement of Principles – decision under review is affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning anxiety disorder No. 103 of 2014
Statement of Principles concerning alcohol use disorder (Balance of Probabilities) No. 49 of 2017
Cases
Simos v Repatriation Commission (2013) 212 FCR 391.
Repatriation Commission v Deledio (1998) 83 FCR 82.
Repatriation Commission v Gorton (2001) 110 FCR 321.
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th Ed, 2013).
REASONS FOR DECISION

Between 1969 and 1989, the Applicant served in the Royal Australian Navy. At the time he enlisted, he was 17 years old. He served on various naval ships and performed various duties, being promoted over the years of his service to Warrant Officer at the time of discharge. He is currently 68 years of age.
The Applicant is in receipt of a part disability pension pursuant to the Veterans’ Entitlements Act 1986 (VEA) for physical conditions. He claims to be entitled to an increase in pension on account of suffering an anxiety disorder and alcohol use disorder. His claim was rejected by the Repatriation Commission and the Veterans’ Review Board affirmed that decision on 9 December 2016 (the reviewable decision).
On 7 December 2020, the Tribunal conducted a hearing regarding an application to review the reviewable decision. Prior claims had been made for anxiety disorder and alcohol use disorder by the Applicant in 2007 and 2013. Documentation in respect of those claims was tendered into evidence as part of the “T documents” that were received by the Tribunal for the purposes of the current proceedings. Although documents relating to the past claims are of some interest and relevance, the Tribunal is required to conduct a fresh merits review hearing to determine the Applicant’s claims.
The evidence of most assistance in the proceedings is the oral evidence of the Applicant and the expert witnesses called by the parties, as the Tribunal had the opportunity to assess their evidence after it was tested by cross-examination.
For the purpose of the proceedings before the Tribunal, the parties agreed that the following issues were those for determination by the Tribunal:
(a)whether the Applicant suffered either a generalised anxiety disorder (GAD) or alcohol use disorder (AUD); and
(b)if he suffered either disorder, whether it was defence-caused.
In opening submissions, both counsels agreed that for the purposes of determining whether either of the claimed disorders were defence-caused, the applicable Statements of Principles (SOP) were —
(a)anxiety disorder, SOP No. 103 of 2014; and

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.

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Details

Case: [2021] AATA 578
Decision Date: 18 March 2021

CaseChat Overview and Summary

This matter concerned an application by the Applicant for an increase in his pension rate due to generalised anxiety disorder (GAD) and alcohol use disorder (AUD). The Respondent, the Repatriation Commission, contended that the Applicant did not suffer from either condition, or alternatively, that if he did, they were not defence-caused as the applicable Statements of Principles (SOPs) were not satisfied. The case was heard by S Taglieri SC, Member.

The legal issues before the court were whether the Applicant suffered from GAD and AUD, and if so, whether these conditions were defence-caused in accordance with the relevant SOPs. The Applicant provided evidence regarding his alcohol consumption during his service, which he stated was not significant. He also described witnessing a traumatic incident involving a pilot ejecting from an aircraft and subsequently dying, which he found deeply upsetting and which he still visualises.

The Member considered the Applicant's evidence concerning his alcohol consumption and concluded that it did not satisfy the temporal requirements of the SOP for AUD. Regarding the GAD claim, the Member found that while the Applicant had described a distressing event, the evidence did not establish a sufficient link between this event and the onset of GAD as required by the relevant SOP. Consequently, the Applicant failed to establish that his conditions were defence-caused.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent contended that the Applicant does not suffer from either a GAD or AUD. In the alternative, if he does, the Respondent contends that they are not defence-caused as the SOPs which apply are not satisfied.THE EVIDENCE The Applicant stated that before enlisting he did not consume significant amounts of alcohol. He had one to two cans on a Friday after work once a week. During training following enlistment he may have had one or two beers on a weekend but again he did not drink significant amounts of alcohol. Once he was posted to HMAS Sydney, the regular issue was one large beer can each evening. This was equivalent to 26 ounces.[6] He said that although he received this issue, he gave some of it to others and did not drink it all.[6] Transcript, 7 [25]–[23]. When he was posted in Vietnam in November 1970 on HMAS Sydney, there was no beer issue.[7] While in Vietnam, the ship was in the waters near Vung Tau, 500 metres off-shore. The Applicant was assigned duties but no information or elaboration was given about what to expect.[8][7] Transcript, 8 [19].[8] Transcript, 8 [12]–[13]. After returning from Vietnam, he was posted to HMAS Cerberus and undertook an Able Seaman’s course. He was based at the Gunnery School where there was a junior sailors’ mess “Wets”. The bar opened at the mess from 4:30 PM. The Applicant stated that there was no restriction on alcohol consumed, but he only attended one or two times per week at the mess and did not drink to excess. He consumed three to four cans per day or in the mess minis, 10 ounce beers.[9][9] Transcript, 9 [1]–[2]. The Applicant was also posted to HMAS Perth, Swan, Yarra, and Derwent. He served for almost seven years on HMAS Swan, initially from 1974.[10] He was posted back to HMAS Cerberus for a promotion course and a Petty Officer course but he then returned to HMAS Swan.[10] Transcript, 9 [27]. It was during his time on HMAS Swan serving as Petty Officer that he said he witnessed the Skyhawk aircraft crash incident involving a Singaporean pilot. The evidence given by the Applicant was:[11][11] Transcript, 10–12.MR HART: Can you describe what happened?---Well, I was on the Tops part of ship with my work crew and whilst the planes were coming in on the Splash Target we were all observing it and I - I looked down and then something made me look up and I saw the plane very low. And I thought, geez this is going to be good. And I watched the plane land on the Splash Target. I immediately looked up in the sky and saw the pilot had ejected. He was - the parachute had opened and he was going down.Right. So when you say it landed on the target, it crashed to the target?---It almost landed right on top of the target.Was there anything in your mind which was obvious as to why the pilot had ejected?---No, I couldn’t see any reason.How long after he ejected did the pilot hit the water?---I’d estimate between 30 and 40 seconds.Did you see the pilot hit the water?---Certainly did.What happened to the parachute?---The parachute - the pilot hit the water and the parachute came down over the top.Did you see the pilot after that?---No.What then happened with the Splash Target?---The Captain immediately ordered the cutting of the line, or the releasing of the line, and turned the ship towards where the pilot went down.Right. So what then happened after the ship was turned around towards the target?---The Captain pulled up - up in the vicinity of where they plotted the pilot’s position. And there was debris in the water.How did you feel about what had transpired?---Well, I didn’t know how to feel. I just watched the pilot hit the water. Couldn’t - didn’t think of why he did it, it’s just that he had ejected and I didn’t feel too good.What then happened?---Well, as I said, the Captain pulled the ship up as close to the position where the pilot went in the water and there was debris in the water and then amongst that debris was his helmet.What did Swan do with respect to the location of the pilot?---We put a Dan Buoy down - a Dan Buoy is a marker that you put in the sea and it floats and it’s very heavily weighted so it sort of stays in position. The Captain ordered a swimmer of the watch to get into the water and retrieve what was in the water. And as the swimmer swam towards the helmet, we were all watching and we didn’t know whether there was any body parts in that, or whatever. The swimmer got to the helmet, turned it round and was very relieved that there was nothing in the helmet. The debris was collected, brought back on board and the ship remained in that area trying to find the pilot. We had no success. We were there for overnight and the next morning Singaporean Navy came out and found the pilot.Your evidence is that you collected debris, or the ship’s company collected debris. What did the debris include?---Well, it was the pilot’s helmet, there were - you could tell that what he had in his last meal. There was food wrappers and some maps, and what have you, out of the plane.Did you observe the swimmer swimming to the wreckage?---I certainly did. It was right next to the ship.How far away were you from the debris?---Well, the time the swimmer got there, we were right above it, about 10, 12 feet.So you had an opportunity to observe the helmet?---Certainly.And you were unsure as to whether the helmet was intact or whether it had body parts?---That’s correct. I - we had no idea. We were all very apprehensive.Can you recall what your duties were at that time?---I was the supervisor of the Tops part of ship.So you were in a position to observe what had occurred?---Certainly.And you did, in fact, observe it?---I certainly did.Now, you’ve described this in detail this morning. Have you had an opportunity to reflect at any stage about what you observed?---I think about it every now and then.And how do you feel when you think about the incident?---Very sad. A lot of times I tear up.Do you visualise the incident at all?---I can describe it, I see it as plain as day. Even today.So, immediately prior to the incident how many planes had there been involved in the exercise?---I think there was around four or five. What they were doing, they were coming in from different directions over the target.And the total time involved from when you were conscious of the pilot ejecting to the swimmer being put in the water - how long did that take for that to occur?---It was probably about ten minutes by the time the ship turned, pulled up.You were conscious of the fact that the pilot had ejected and had gone into the water?---Most definitely. We watched him - we watched him from the time - as soon as we saw his parachute open till the time he hit the water.

Decision

Reasons for decision

For the above reasons, the Applicant fails at the third stage of the required approach to determining if he has an entitlement for AUD.CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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