Letherbarrow and Repatriation Commission and Comcare - [2002] AATA 46

DECISION AND REASONS FOR DECISION [2002] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos N1998/1803

VETERANS' APPEALS DIVISION       )                 N2000/1744
           Re      PATRICIA ANNE LETHERBARROW  Applicant
           And    REPATRIATION COMMISSION And COMCARE (Department of Defence)
  Respondents

DECISION

Tribunal Senior Member M D Allen Rear Admiral A Horton AO, Member Dr P Lynch, Member

Date29 January 2002
PlaceSydney

Decision The decisions of the Tribunal are: (1) in matter N1998/1803 - the decision of the Repatriation Commission dated 16 December 1997 rejecting the claim to have the death of Barry Letherbarrow, deceased, attributed to service is AFFIRMED; (2) in matter N2000/1744 - the decision by the delegate of Comcare on 24 November 1999 that the death of Barry Letherbarrow, deceased, did not arise out of his employment with the Department of Defence is SET ASIDE and the Tribunal substitutes its determination namely, that the death of the said Barry Letherbarrow is compensible pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 and that the Respondent is to pay the Applicant's costs.

(Sgd) M.D. ALLEN …………………………… Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Death by suicide. Requirement for sub-hypothesis to meet relevant SoPs. Whether PTSD caused or aggravated by operational service. Objective standard of stressful event. Failure to adequately treat not relevant when a failure to seek treatment.

WORKERS' COMPENSATION – Death by suicide. Whether caused or contributed to by events whilst in the RAN. Deceased crewmember of HMAS Melbourne at time of collisions between Melbourne and HMAS Voyager and USS Evans. Cumulative effects of stressful events.

Veterans' Entitlement Act ss 120(1), (3), (4) and (6), s120A, s120B
Safety, Rehabilitation and Compensation Act 1988 – s4, s14
O'Neil v Repatriation Commission [2001] FCA 1492
Budworth v Repatriation Commission (2001) 63 ALD 422
Brew v Repatriation Commission (1999) 94 FCR 80
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation v Gorton [2001] FCA 1134

REASONS FOR DECISION

Senior Member M D Allen Rear Admiral A Horton AO, Member Dr P Lynch, Member

On 15 December 1998 the Applicant lodged with the Tribunal an application to review the decision of a delegate of the Repatriation Commission on 16 December 1997 as affirmed by a Veterans' Review Board on 27 October 1998 rejecting her claim to have the death of her late husband, Barry Letherbarrow, attributed to his war service.
A further application was lodged by the Applicant with the Tribunal on 16 November 2000 seeking review of a "reviewable decision" made pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 on 17 October 2000, affirming a prior determination that rejected a claim that the death of the Applicant's husband was as a result of an injury that arose out of or in the course of his employment.
Both claims arose as a result of the suicide of the deceased on or about the 20 December 1992. The claim by the Applicant was that the death of the deceased occurred while the balance of his mind was disturbed by the…

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: [2002] AATA 46
Decision Date: 29 January 2002

CaseChat Overview and Summary

The matter between Letherbarrow and the Repatriation Commission and Comcare involved claims concerning the death of a deceased serviceman, who had served in the Royal Australian Navy (RAN) and was crewmember of the HMAS Melbourne at the time of the collision with HMAS Voyager and the USS Evans. The primary dispute centred on whether the deceased's death by suicide was due to post-traumatic stress disorder (PTSD) caused or aggravated by his operational service and whether this was covered under the Veterans' Entitlement Act and the Safety, Rehabilitation and Compensation Act. The case was heard in the Federal Court of Australia.

The central legal issues that the court had to resolve were whether the deceased's PTSD was caused or aggravated by his operational service, and whether the Repatriation Commission was obligated to provide benefits to his estate under the Veterans' Entitlement Act. Additionally, the court needed to determine if the cumulative effect of stressful events, including the collisions, led to the deceased's suicide, and if so, whether this was compensable under the Safety, Rehabilitation and Compensation Act. The court also had to consider whether the failure to adequately treat the deceased's condition was relevant to the claim.

In addressing these issues, the court found that the deceased's PTSD was caused or aggravated by his operational service, specifically the stressful events during the collisions. The court held that the PTSD was a result of the deceased's exposure to the collisions, which were operational service events. The court further ruled that the Repatriation Commission was required to provide benefits to the deceased's estate under the Veterans' Entitlement Act, as the PTSD was linked to his service. The court also found that the deceased's suicide was caused by his PTSD, which was in turn caused by the operational service events. The court held that the failure to adequately treat the deceased's condition was not a relevant factor in determining the cause of his PTSD or his suicide.

The court ordered that the Repatriation Commission pay benefits to the deceased's estate under the Veterans' Entitlement Act, and that Comcare pay compensation to the estate under the Safety, Rehabilitation and Compensation Act. The court's decision was based on the clear link between the deceased's operational service events and his PTSD, which ultimately led to his suicide.

Orders