Lowes and Repatriation Commission - [2000] AATA 677

DECISION AND REASONS FOR DECISION [2000] AATA 677

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/365

VETERANS' APPEALS DIVISION )

Re TERENCE LOWES
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date8 August 2000
PlaceCanberra

Decision The tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with the direction that the veteran's disease condition of PTSD is war-caused.

..................(Sgd.)............................
Pamela Burton Senior Member
CATCHWORDS
VETERANS' AFFAIRS – post traumatic stress disorder – whether war-caused – whether factors in statement of principle met – whether in fact in danger during service – whether perceived danger a sufficient stressor - whether relevant significant incident occurred during eligible service.
Legislation
Veterans' Entitlements Act 1986.
Authorities
Repatriation Commission v Keeley [2000] FCA 532
Keeley v Repatriation Commission [1999] FCA 1103
Ogston v Repatriation Commission [1999] FCA 342
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

8 August 2000 Pamela Burton, Senior Member

This is an application for review of a decision of the Repatriation Commission dated 29 October 1997 so far as it related to and rejected the veteran's claims for post-traumatic stress disorder ("PTSD") and migraine. The Veterans' Review Board affirmed the decision in this respect on 29 October 1998. The veteran has other disabilities which have been accepted as war-caused. At the hearing the tribunal was informed that the veteran's migraine condition is accepted as war-caused. Whether or not his PTSD is war-caused affects the rate of pension to which the veteran is entitled.
Mr David Thorley represented the veteran at the hearing, and Mr John Sylvestre represented the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition a statement by the veteran, various medical reports and other documents were tendered at the hearing. The veteran gave evidence at the hearing, and Mr Le Pavoux gave evidence in person on his behalf. Dr Brian White, consultant psychiatrist, gave telephone evidence for the veteran, and Dr Robert Lewin, consultant psychiatrist, gave telephone evidence on behalf of the respondent. Mr Brendan O'Keefe, professional historian, gave evidence in person on behalf of the respondent.
The veteran was born on 18 August 1948. He served in the Royal Australian Navy from April 1964 until his discharge in 1973. In this time the veteran had various periods of eligible service for the purpose of the Veterans' Entitlements Act 1986 ("the Act"). Of particular relevance to these proceedings are three periods of operational service, namely 31 August 1965 and 9 February 1966 when he served on HMAS Vendetta; 8 April 1967 and 13 June 1968 when he served on HMAS Sydney; and 16 March 1971 and 11 October 1971 when he served on HMAS Brisbane. The precise dates of his operational service are set out in the respondent's statement of facts and contentions dated 12 October 1999 and they are not in dispute. The veteran's…

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 Lowes and Repatriation Commission

Details

AGLC: Lowes and Repatriation Commission [2000] AATA 677
Case: [2000] AATA 677
Decision Date: 8 August 2000

CaseChat Overview and Summary

Lowes was a veteran who claimed that his post traumatic stress disorder (PTSD) was caused by his service in the Royal Australian Navy. The Repatriation Commission, now known as the Department of Veterans' Affairs, was responsible for deciding whether the veteran's condition was war-caused. The Commission had previously determined that the veteran's PTSD was not caused by his service and rejected his claim. The veteran sought review of the Commission's decision in the Administrative Appeals Tribunal (AAT).

The legal issue before the AAT was whether the veteran's PTSD was caused by his service in the Navy. To decide this, the AAT had to consider whether the veteran's condition met the criteria set out in a relevant statement of principle. The AAT also had to determine whether the veteran was actually in danger during his service, and whether the perceived danger was a sufficient stressor to cause his PTSD. Finally, the AAT had to decide whether a relevant significant incident occurred during the veteran's eligible service that could have caused his condition.

The AAT found that the veteran's PTSD was war-caused. The Tribunal accepted the veteran's evidence that he perceived a real and immediate danger during his service, which could have caused his PTSD. The Tribunal rejected the Commission's argument that the veteran's condition was not caused by his service, as there was insufficient evidence to rule out the possibility that the veteran's PTSD was caused by the incidents he experienced during his service.

The AAT set aside the Commission's decision and remitted the matter back to the Commission for reconsideration. The Tribunal directed the Commission to find that the veteran's PTSD was war-caused. The Tribunal's decision was based on the evidence before it, which showed that the veteran's condition was likely caused by the incidents he experienced during his service, and that the Commission had not properly considered this evidence in making its original decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The earliest date of effect, should the veteran be successful, is 23 October 1996, being three months before the respondent's receipt of his claim that he suffers a war-caused PTSD.The evidence The veteran was born on 18 August 1948. He was 15 when he commenced employment with the Royal Australian Navy in April 1964. He was 16 when he was drafted to the HMAS Vendetta, a destroyer, turning 17 whilst on board the vessel. He was the Layer who was responsible for the elevation of gun barrels. His action station was in the aft turret. His evidence is that on 30 November 1965 the Vendetta contacted an Indonesian vessel and the crew was ordered to their action stations. The turret is fully enclosed and the veteran's position was the furthermost away from the escape hatch. He saw the Indonesian boat and once he was at his action station, his knowledge of the danger depended entirely upon information from radio contact. He became aware that there were over a hundred well-armed armed soldiers on the Indonesian boat and that that vessel was too close to the Vendetta to be fired upon from the turret. The danger he perceived as imminent was that if the Indonesian soldiers thought they had "nothing to lose", they might storm the Vendetta and thrown a grenade in the aft turret, from which the veteran would have no escape. The Vendetta incident reached the official Report of Proceedings for the vessel. It indicates that the Vendetta assisted another ship in the arrest of the Indonesian boat, and that the Vendetta's Commander described the incident as the "highlight of the patrol" (Exhibit 2). Mr O'Keefe, professional historian, in his report dated 11 October 1999 prepared for these proceedings, stated that the absence of any mention of the incident in contemporary newspapers and official history volumes might suggest that the episode was a fairly minor matter. On the other hand, he stated, the current unavailability of detailed information "makes it very difficult to determine with any degree of certainty just how serious or dangerous an incident it was." He cast doubt on the possibility of a grenade being thrown into the gun turret when the turrets were closed up. Similarly, he stated that he found it difficult to understand how the Indonesians soldiers could have got up the side of the Vendetta to reach its deck and storm the ship (Exhibit 2). Mr O'Keefe's logical analysis is no doubt correct with the benefit of hindsight. However, I do not think the young veteran in the situation of the emergency to which he was reacting at the time had the capacity or the time to make such a knowledgeable and rational analysis. The veteran said in evidence that he had no reason to believe the Indonesian soldiers could not access the Vendetta's deck, and he feared that if the soldiers stormed the ship they might throw ammunition down the turret, by opening the hatch from the outside. His fears were fueled by a pre-embarkation briefing, which included a warning that the Indonesian soldiers were desperate people. He had a genuine apprehension not helped by the fact that his action station was in a confined space in the turret from where he could not observe the outside events. He understandably perceived that he was in a dangerous and helpless situation. His fear was made worse by what he imagined might be happening outside the turret and his knowledge that the Vendetta was not designed to do the work it was trying to do with respect to the Indonesian boat.

Decision

Reasons for decision

However, for the veteran's PTSD not to be war-caused, I must be satisfied beyond reasonable doubt that there is no sufficient ground for finding that neither of the two earlier incidents caused the veteran's PTSD. I am not able to say with any certainty that the Vendetta and Sydney incidents which occurred during periods of the veteran's operational service, did not cause his PTSD, in that it can not be said that had the Brisbane incident not occurred, the veteran would not now be suffering PTSD. On the evidence before me I am satisfied that the veteran's PTSD condition is war-caused, despite my finding that the Brisbane incident occurred outside the veteran's operational or eligible defence service. Decision The decision under review is set aside and the matter is remitted to the respondent for reconsideration with the direction that the veteran's disease condition of PTSD is war-caused.I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior MemberSigned: ..................................................................................... AssociateDate/s of Hearing 19 October1999Date of Decision 8 August 2000Counsel for the Applicant Mr D ThorleySolicitor for Applicant Gary Robb & AssociatesCounsel for the Respondent Mr J SylvestreSolicitor for the Respondent Department of Veterans' Affairs, Advocacy

Ratio Decidendi

Legal Principle Established

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