Linda Hoath and Repatriation Commission - [2013] AATA 799

[2013] AATA 799

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/5149

Re

Linda Hoath

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton

Date 12 November 2013

Place Sydney
The Decision under review is affirmed.
..............................[SGD]..........................................
CATCHWORDS
VETERANS’ AFFAIRS — Widows’ pension — Where hypothesis must be upheld by more than one Statement of Principles — Where the identified hypothesis relies on a number of sub-hypotheses — Whether the veteran was suffering from a “clinically significant anxiety disorder” — Decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) – ss 13; 120; 120A
CASES
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder (Instrument No. 101 of 2007 as amended by Instrument No. 15 of 2011)
Statement of Principles concerning Cerebrovascular Accident (Instrument No. 51 of 2006 as amended by Instrument No 123 of 2011)
Statement of Principles concerning Hypertension (Instrument No. 35 of 2003 as amended by Instrument No. 11 of 2008)
Statement of Principles concerning Hypertension (Instrument No. 63 of 2013)
REASONS FOR DECISION
Senior Member A K Britton
12 November 2013

Albert Hoath served in the Royal Australian Air Force (RAAF) between 1951 and 1971. His widow Linda Hoath seeks review of a decision made by the Repatriation Commission and affirmed by the Veterans' Review Board to refuse her claim for a widow’s pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act). The stated reason for that decision was that Mr Hoath’s death was not “war-caused”.
Whether Mr Hoath’s death was war-caused turns principally on whether in or around 1980 he was suffering from a “clinically significant anxiety disorder”.
STATUTORY FRAMEWORK
Section 13 of the Act provides that where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran.
It is contended that Mr Hoath’s death resulted from his period of “operational service” in Vietnam, 22 November 1967 to 19 November 1968. Therefore the question of whether his death was “war-caused” must be assessed by applying the standard of proof set out in ss 120 and 120A of the Act. Section 120 provides:
(1)Where a claim under Part II for a pension in respect of the ... death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that ... the death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3)In applying subsection (1) or (2) 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:
...
(c)that the death was war-caused ...
This subsection is affected by section…

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: [2013] AATA 799
Decision Date

CaseChat Overview and Summary

The case of Linda Hoath versus the Repatriation Commission was heard in the Federal Court of Australia. The central issue was whether Mr Hoath's return from Vietnam in 1968 led to a clinically significant anxiety disorder that qualified as a war-related condition. Mrs Hoath, the wife of Mr Hoath, sought to establish that her husband's condition met the criteria for a war-related anxiety disorder under the Repatriation Medical Authority's guidelines. She presented evidence from her observations and from psychiatrist Dr Dinnen, who provided a professional opinion on Mr Hoath's mental health.

The legal issues that the court had to address were whether the evidence provided was sufficient to substantiate the claim that Mr Hoath's condition was a direct result of his service in Vietnam. This included determining if the symptoms exhibited by Mr Hoath, such as nightmares, irritability, social withdrawal, and increased anxiety, met the diagnostic criteria for an anxiety disorder not otherwise specified as defined by the DSM-IV. Furthermore, the court needed to assess whether these symptoms were severe enough to qualify as a war-related condition under the applicable legislation.

In its reasoning, the court examined the evidence provided by Mrs Hoath and Dr Dinnen. The court acknowledged Mrs Hoath's detailed account of her husband's changed behaviour post-Vietnam, including his nightmares, social withdrawal, and increased anxiety. Dr Dinnen's opinion, which supported the presence of a clinically significant anxiety disorder, was also considered. The court concluded that the evidence, while substantial, did not conclusively establish that Mr Hoath's condition was directly attributable to his service in Vietnam. The court found that although Mr Hoath exhibited symptoms consistent with an anxiety disorder, there was insufficient evidence to link these symptoms directly to his military service.

As a result, the court ruled against Mrs Hoath's claim. The Repatriation Commission's decision to deny the application for a war-related pension was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

DSM – IV defines an “anxiety disorder not otherwise specified” to mean (at p 484):300.00 Anxiety Disorder Not Otherwise SpecifiedThis category includes disorders with prominent anxiety or phobic avoidance that do not meet criteria for any specific Anxiety Disorder, Adjustment Disorder With Anxiety, or Adjustment Disorder With Mixed Anxiety and Depressed Mood. Examples include:(1)Mixed anxiety depressive disorder: clinically significant symptoms of anxiety and depression, but the criteria are not met for either a specific Mood Disorder or a specific Anxiety Disorder(2)Clinically significant social phobic symptoms that are related to the social impact of having a general medical condition or mental disorder (e.g., Parkinson’s disease, dermatological conditions, Stuttering, Anorexia Nervosa, Body Dysmorphic Disorder)(3)Situations in which the disturbance is significant enough to warrant a diagnosis of an Anxiety disorder but the individual fails to report enough symptoms for the full criteria for any specific Anxiety Disorder to have been met; for example, an individual who reports all the features of Panic Disorder Without Agoraphobia except that the Panic Attacks are all limited-symptom attacks(4)Situations in which the clinician has concluded that an Anxiety Disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced.Evidence of clinically significant anxiety disorder In support of her contention that her husband was suffering from a clinically significant anxiety disorder after his return from Vietnam, Mrs Hoath relies upon her own observations and the opinion of psychiatrist Dr Dinnen. The Hoaths married in 1956. At that time Mrs Hoath was a registered nurse and Mr Hoath had been serving in the RAAF for four years. Mrs Hoath continued to work as a nurse in various capacities until she retired in 1991. According to Mrs Hoath, when her husband left for Vietnam in November 1967 he was in tears and apprehensive. During his 12 months in Vietnam Mr Hoath worked as a load master, responsible for ensuring that cargo loaded onto RAAF aircraft complied with permissible weight and balance limits. Throughout that period Mr Hoath gave his wife regular reports about his daily activities and disclosed that for about six months his duties included ensuring the correct identification of deceased service personnel loaded onto RAAF aircraft for transport back to Australia. This task required Mr Hoath to unzip body bags to verify whether the identification tags worn by the deceased veteran matched the accompanying documentation. According to Mrs Hoath on his return from Vietnam her husband was a “changed man”. She claims that on his return:·He experienced nightmares on “most nights” and this continued until his first cerebrovascular accident in 2004. She could not recall exactly when the nightmares started but was confident that it was before the birth of their daughter in 1971. On her account the nightmares caused her husband to wake and seek comfort from her. He told her he saw himself in body bags in the nightmares·His behaviour towards their five children changed: according to Mrs Hoath he was irritable, had “absolutely no patience” and as little to do with them as possible. She claimed that this was in marked contrast to his behaviour before he left for Vietnam when he would play with and help the children with their homework and happily attended family outings·He withdrew from his church community: according to Mrs Hoath before he left for Vietnam she and her husband had been active in their church but on his return he no longer socialised with the church community. While they continued to attend Sunday services they sat at the back of the church and left immediately after the service·He became socially withdrawn: according to Mrs Hoath before leaving for Vietnam the house was full of life and the family routinely billeted children attending local sporting events etc. This stopped on her husband’s return because he found the children irritating·His level of anxiety increased: according to Mrs Hoath her husband had always been something of a worrier but his tendency to worry increased significantly after his return from Vietnam·He avoided crowds·He withdrew from friends: he refused to have any contact with his friends including his best friend·He stopped being outgoing and independent and became totally dependent upon her·He had trouble sleeping·He constantly demanded sex so much so that a few years after his return she decided to work night shifts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5149
Re	Linda Hoath
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member A K Britton
Date	12 November 2013
Place	Sydney