Mackay and Repatriation Commission

Case [2002] AATA 633

DECISION AND REASONS FOR DECISION [2002] AATA 633

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1780

VETERANS' APPEALS DIVISION          )          
           Re      Maurice Mackay   
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Mr RP Handley, Deputy President          

Date30 July 2002

PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes a new decision as follows:  1. The Applicant's claims in respect of Psychoactive Substance Abuse or Dependence and Alcoholic Liver Damage are accepted. 2.   The Applicant's claims in respect of Post Traumatic Stress Disorder, Depressive Disorder and Generalised Anxiety Disorder are refused. 3.   The Applicant is eligible for payment of pension at the Special Rate from 4 June 1995.           

..............................................
  R P Handley
  Deputy President
CATCHWORDS
REPATRIATION COMMISSION – Disability pension - Special Rate of Pension – whether post traumatic stress disorder a war-caused disease - whether psychoactive substance abuse and dependence a war-caused disease – whether alcoholic liver damage a war-caused disease – whether general anxiety disorder a war-caused disease - whether veteran experienced a severe stressor – diagnosis to be established to reasonable satisfaction of decision-maker – requirement that the decision-maker have regard to the relevant Statement of Principles – held that the decision under review be set aside – new decision substituted.
Veterans' Entitlement Act 1986 ss 6, 9(1), 13(1), 22
Guide to the Assessment of Rates of Veterans' Pensions
Statement of Principle 15/1994 as amended by 225/1995 - Post Traumatic Stress Disorder
Statement of Principle 5/1994 - Psychoactive Substance Abuse
Statement of Principle 3/1994 - Depressive Disorder
Statement of Principle 48/1994 as amended by 275/1995 – General Anxiety Disorder
Banovich v Repatriation Commission (1986) 69 ALR 396
Benjamin v Repatriation Commission [2001] FCA 1879
Birtles v Repatriation Commission (1991) 105 ALR 359
Budworth v Repatriation Commission and Benjamin v Repatriation Commission (S13/2002 (21 June 2002))
Byrnes v Repatriation Commission (1993) 177 CLR 564
O'Neill v Repatriation Commission [2001] FCA 1492
Re Boardman and Repatriation Commission [2001] AATA 764
Re Budworth and Repatriation Commission [2000] AATA 127
Re Chaplin and Repatriation Commission [2000]] AATA 688
Re Howe and Repatriation Commission [1999] AATA 1006
Re Kelly and Repatriation Commission [2001] AATA 254
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio [1998] FCA 391
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

30 July 2002                    Mr RP Handley                 

  1. This is an application by Maurice Mackay ("the Applicant") for a review of a decision of the Veterans' Review Board ("the VRB") made on 30 September 1998 which (1) affirmed a decision of a delegate of the Repatriation Commission ("the Respondent") dated 4 March 1996 to refuse the Applicant's claim in respect of post traumatic stress disorder ("PTSD") and psychoactive substance abuse and dependence, and (2) affirmed a decision of a delegate of the Respondent dated 12 June 1996 to refuse the Applicant's claim in respect of alcoholic liver damage. 

  2. At the hearing,…

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AGLC
Mackay and Repatriation Commission [2002] AATA 633
Case
[2002] AATA 633
Decision Date

CaseChat Overview and Summary

The case of Mackay v Repatriation Commission involves a veteran who served in the Australian Navy and is seeking a disability pension for various conditions. The central issue before the court was whether the veteran's conditions, including post-traumatic stress disorder, psychoactive substance abuse, alcoholic liver damage, and general anxiety disorder, were war-caused diseases for the purposes of the Veterans' Entitlement Act 1986. The court had to determine whether the decision of the Repatriation Commission, which had denied the veteran's claim for certain conditions, was legally sound and if the Commission had properly applied the relevant legislation and guidelines.

The court examined the statutory provisions and case law, including the requirement for the Commission to assess conditions to its reasonable satisfaction and the need to consider relevant Statements of Principles. The court also considered the evidence provided by the veteran and medical experts regarding the nature and cause of his conditions. The decision hinged on whether the Commission had adequately addressed the veteran's claims and whether the evidence supported the conclusion that his conditions were not war-caused.

The court found that the Repatriation Commission had not sufficiently considered the veteran's claims and the relevant evidence. The court held that the Commission's decision to deny the veteran's claims for certain conditions was flawed and not supported by the evidence. Consequently, the court set aside the decision and substituted its own, determining that the veteran was entitled to a pension for certain conditions as claimed. The court also remitted the matter back to the Commission for reassessment of the pension rate.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing, the Applicant was represented by Neale Dawson, of Counsel, and the Respondent was represented by Rhonda Henderson, of Counsel. The Tribunal had before it the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. The Applicant and Commodore Philip Mulcare gave oral evidence and Dr WD Wade and Dr Robert D Lewin gave evidence by conference telephone.Background The Applicant was born on 25 July 1936 and is aged 66. He served in the Australian Navy from 18 December 1958 to 10 December 1968 and from 12 July 1972 to 21 December 1984. The Applicant's service in Vietnam from 27 May 1965 to 26 June 1965 and from 20 September 1965 to 30 October 1965, counts as "operational service" as does his service in Malaysia from 31 August 1965 to 7 September 1965, from 6 November 1965 to 29 November 1965, from 16 December to 20 December 1965, and from 4 January 1966 to 5 February 1966. The Applicant's service from 7 December 1972 to 28 December 1984 counts as "defence service". On 4 September 1995, the Applicant lodged a claim for disability pension in respect of a number of conditions including "nerves and substance abuse". That part of the claim was treated as being in respect of PTSD and pyschoactive substance abuse or dependence. On 4 March 1996, a delegate of the Respondent decided to refuse the Applicant's claim for PTSD and psychoactive substance abuse or dependence but accepted his claim in respect of chronic solar skin damage and bilateral sensori neural hearing loss with tinnitus. The delegate decided that a disability pension would be granted to the Applicant at 40% of the General Rate with effect from 4 June 1995. On 26 April 1996, the Applicant lodged a further claim in respect of liver damage. That claim was refused by a delegate on 12 June 1996. On 13 May 1997, a review officer decided not to intervene to conduct an internal review. On a further review of the decision by the VRB on 30 September 1998, the VRB decided to affirm the decisions. However, the VRB also decided to set aside that part of the decision dated 4 March 1996 in respect of the Applicant's claim for chronic airflow limitation and substituted a decision that the condition was "war-caused". The VRB remitted the matter to the Respondent for assessment of the rate at which pension was to be paid. On 17 December 1998, the Applicant lodged an application with the Tribunal for a review of the VRB decision. On 16 June 2000, the Tribunal set aside the VRB decision and substituted a decision in the following terms:(a)that part of the decision of the Respondent dated 4 March 1996 which rejected the Applicant's claim in respect of PTSD and psychoactive substance abuse is affirmed; and(b)the Respondent's decision dated 12 June 1996 rejecting the Applicant's claims in respect of alcoholic liver damage and other conditions is affirmed;(c)the Applicant is entitled to pension for incapacity occasioned by chronic airflow limitation as and from 4 June 1995; and(d)the Applicant is entitled to pension for incapacity occasioned by the diseases of chronic airflow limitation, chronic solar skin damage and bilateral sensori neural hearing loss with tinnitus at the rate of 100% of the General Rate as and from 4 June 1995.

Evidence

Evidence Before The Court

Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulations "to its reasonable satisfaction". Because the Applicant's claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles ("SoP") in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.Applicants Evidence The Applicant said he left school in Melbourne at the age of 14 and had short term employment working with a photographic firm and then in a garage doing mechanical work before commencing an apprenticeship as a fitter and turner at the Naval Dockyard. In January 1956, he was called up for national service and underwent four months full-time training. He then returned to finish his apprenticeship, continuing to serve in the Naval Reserve in the meanwhile. In December 1958, he joined the Navy as a qualified tradesman and underwent three months basic training. The Applicant served on HMAS Melbourne from 30 June to 19 July 1959 while the ship was in refit in Sydney, then on HMAS Voyager from 20 July 1959 to 6 November 1959, the first two months being spent "alongside" in Sydney, and on HMAS Melbourne from 7 November 1959 to 13 December 1959. When he served on HMAS Voyager for a few months, he already knew between six and 12 of the crew whom he had met previously, some in recruit school. After completing his training, the Applicant served on HMAS Melbourne from 1 August 1960 to 24 November 1962 when he returned to HMAS Cerberus for further shore training. HMAS Voyager was lost on 10 February 1964. On 28 June 1964, the Applicant joined HMAS Duchess and over the next two years saw operational service in Malaysia, Singapore, Brunei and Vietnam. In December 1966, the Applicant commenced a shore posting at HMAS Kuttabul at Garden Island in Sydney and completed his nine year engagement on 17 December 1967. He commenced a year's full-time reserve service on the following day and left the Navy on 17 December 1968. The Applicant re-entered the Navy on 12 July 1972, serving until 21 December 1984. During this period, he served on the following ships: from 8 January 1973 to 29 September 1975, on HMAS Melbourne; from 19 July 1976 to 11 October 1976, on HMAS Yarra; and from 16 December 1977 to 7 June 1981 on HMAS Yarra. The Applicant said when he joined the Navy in December 1958, he only drank alcohol occasionally. He has no recollection of drinking regularly until 1965 after his second trip to Vietnam. After this second trip, he became obsessed by alcohol and drank to ease his tension when he had difficulty coping. On his first trip to Vietnam, the Applicant was serving on HMAS Duchess which, together with HMAS Parramatta, escorted HMAS Sydney on her first trooping voyage to Vietnam. The Applicant said his post was in the transmitting station, midship, down below through three hatches. Because the ship was at defence stations, this was a sealed section and the hatches could only be opened from the inside with some difficulty using a spanner. He was afraid that if the ship was hit and he was injured, he might not have the strength to open the hatch. He said the transmitting station was a small area, about 12 or 14 feet by 18 feet in size, with a low deck head of about 8 feet. The area was full of computers and, at any one time, between three and five personnel, including himself, would be present. His role was to maintain the equipment. The Applicant said he was afraid of a collision occurring, having previously served on HMAS Voyager and lost quite a few friends when HMAS Voyager was sunk in February 1964. He was concerned that the same thing might happen to him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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