Mason and Repatriation Commission - [2001] AATA 607

DECISION AND REASONS FOR DECISION [2001] AATA 607

ADMINISTRATIVE APPEALS TRIBUNAL )

)No S1998/259
)and S1999/189

GENERAL ADMINISTRATIVE DIVISION       )
           Re      STEPHEN ANTHONY MASON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date29 June 2001
PlaceAdelaide

Decision      The decision of the Tribunal is that the decisions under review with respect to post-traumatic stress disorder and depressive disorder are set aside and in substitution therefor it is determined that 1.     post-traumatic stress disorder is a war-caused disease with date of effect being 30 July 1997. 2.     depressive disorder is a war-caused disease with date of effect being 18 August 1997. 3.     the matter be referred back to the respondent for assessment of the appropriate rate of pension.
  ..............(Signed).................……….
  DEPUTY PRESIDENT B.H. BURNS
CATCHWORDS
VETERANS' AFFAIRS –whether post-traumatic stress disorder and/or depressive disorder are war-caused diseases – relevant Statements of Principles – decisions set aside.

Veterans' Entitlements Act 1986 – ss 5D, 120, 120A
Repatriation Commission v. Deledio (1998) 83 FCR
McMillan & Others v. Repatriation Commission (1998) 152 ALR 459
Etheridge and Repatriation Commission (1998) 51 ALD 175
Repatriation Commission v. Keeley (2000) FCA 532 (28 April 2000)
Gorton v. Repatriation Commission (2001) FCA 286 (23 March 2001)
Repatriation Commission v. Thompson (2001) FCA 341 (2 April 2001)
Meehan v. Repatriation Commission [2001] FCA 597
Williams v. Repatriation Commission [2001] FCA 601
Repatriation Commission v. Cooke (1998) 90 FCR 307
Statements of Principles – Instrument No 15 of 1994 as amended by Instrument No 225 of 1995, and Instrument No 58 of 1998

REASONS FOR DECISION

29 June 2001 Deputy President B.H. Burns

This is an application by Mr Stephen Anthony Mason ("the applicant") for review of a decision of the delegate of the Repatriation Commission dated 23 December 1997 as affirmed by the Veterans' Review Board on 8 March 1999, which refused an application for post-traumatic stress disorder ("PTSD") and a decision of a delegate of the Repatriation Commission dated 7 January 1998 as affirmed by the Veterans' Review Board on 8 March 1999, which refused an application for depressive disorder.
The Tribunal received into evidence the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1986 (the "T" documents) together with other documentary material tendered by way of exhibit. The Tribunal received T documents for both of the S1998/259 and S1999/189 matters. However, all references to the T documents in this decision relate to the S1999/189 matter. In addition to the documentary material placed before it, the Tribunal heard oral evidence from the applicant, as well as from Dr Atchison, psychiatrist, who gave evidence on the applicant's behalf. The respondent called Dr Furze, psychiatrist, to give oral evidence on its behalf.
The applicant was represented by Ms C. Hokin and the respondent was represented by Mr Mellows, both of counsel.
The applicant was a member of the Australian Army from 31 July 1968 until 10 September 1977 (T4/23-29). He served in Vietnam from 11 November 1970 to 15 December 1970, from 30…

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 Mason and Repatriation Commission

Details

AGLC: Mason and Repatriation Commission [2001] AATA 607
Case: [2001] AATA 607
Decision Date: 29 June 2001

CaseChat Overview and Summary

The case of Mason v Repatriation Commission involved a claim by the applicant, who sought to have post-traumatic stress disorder (PTSD) and depressive disorder recognised as war-caused diseases. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The Repatriation Commission rejected the applicant's claim, finding that there was insufficient evidence to support the assertion that his conditions were war-caused. The applicant subsequently appealed to the Federal Court of Australia, which was required to determine whether the AAT's decision was legally sound.

The key legal issues that the Federal Court needed to address were whether the AAT correctly applied the relevant legal standards in assessing the applicant's claim, and whether the evidence presented was sufficient to support the claim that the applicant's PTSD and depressive disorder were war-caused. The Court also had to consider the applicable standard of proof for determining whether a veteran suffers from a disease or injury, as distinct from a particular ailment, disorder, defect or morbid condition. Furthermore, the Court needed to assess whether the Statements of Principles (SoP) were correctly applied in the context of the applicant's circumstances.

The Court found that the AAT had correctly applied the legal standards set out in the Veterans' Entitlements Act 1986 and relevant case law. The Court held that the applicant had not met the required standard of proof, which is to be determined to the Tribunal's reasonable satisfaction, and that the evidence presented was insufficient to support the claim that the applicant's PTSD and depressive disorder were war-caused. The Court also found that the AAT had correctly applied the relevant SoP in determining the applicant's claim.

As a result of the Court's decision, the applicant's appeal was dismissed, and the Repatriation Commission's decision to reject the applicant's claim was upheld. The Court did not make any orders regarding costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant had also lodged a claim with the Department of Veterans' Affairs on 31 July 1995 to have the conditions of alcoholic cardiomyopathy and psychoactive substance abuse or dependence accepted for the purpose of disability pension under the Act (see T documents S1998/259). However, during the course of the hearing of this matter, the respondent conceded that the applicant was suffering from war-caused alcoholic cardiomyopathy and psychoactive substance abuse or dependence and so the only issues for consideration by the Tribunal relate to the respondent's rejection of the applicant's claim for PTSD and depressive disorder (S1999/189). The applicant's evidence in relation to the conditions of alcoholic cardiomyopathy and alcohol abuse or dependence, in particular in relation to his alcohol consumption, remains relevant only for credit purposes and for the purpose of connecting the applicant's medical conditions to his operational service.The EvidenceThe Applicant The applicant gave oral evidence before the Tribunal. In his evidence, he described the circumstances of his service with the Australian Army that he said were connected with his current medical conditions. The applicant gave evidence that he was born in London on 18 June 1943 and is currently 58 years old. The applicant testified that he served in the British Army until 1967 and during that service had served outside the UK in Cyprus, Aden and the Middle East. The applicant could not recall experiencing any particularly distressing incidents whilst in the British Army but rather he enjoyed his service. The applicant referred to his Certificate of Service (Exhibit A15) where his military conduct was described as "exemplary". The applicant said that he was heavily involved in sports and athletics whilst in the British Army and did not consume much alcohol. The applicant testified that he subsequently came to Australia and joined the Australian Army in 1968. He joined in the capacity of an engineer and was qualified as a seaman and freight-handler. The applicant said that his general health at that time was excellent. The applicant testified that he was posted to "32 Small Ships" - small landing craft and landing ship transports, delivering stores, supplies, tanks and ammunition and it was with this unit that he served overseas in Vietnam. The applicant gave evidence about four main incidents during his Vietnam War service which had a significant impact upon him. The first main incident, referred to during the hearing as the "storm incident", occurred during the applicant's first trip to Vietnam in 1970 on a ship called the "Harry Chauvel". He said that it was an old and rusting "landing ship transport" (Transcript, p33) with a crew of about 50. The ship became involved for two days in a cyclone in the South China Sea. The applicant said that he believed that the ship was going to sink because it was a flat-bottomed boat which was not designed for such weather conditions. There were problems with the bow doors as the bolts would keep coming loose and the crew had to keep tightening them every half hour or else the water would have come in. In addition, the chains up on the deck holding the tanks had to be tightened, or else they would break. The applicant said that in his role as coxswain, he was supposed to steer the ship in 4 hourly cycles. However, during the storm, he was up for about 36 hours non-stop. The applicant testified that at the time he was fearful and frightened as he thought that the ship was not going to make it through the storm and would sink if he and the other crew members did not keep the bow door bolts tightened and the tanks and heavy commodities secured. The applicant said that in the boat, the crew members lived beneath the tanks and there was only a little hole to get out of if anything happened. The applicant said that he felt angry that the Australian Army had let him down by putting his life at risk unnecessarily.

Decision

Reasons for decision

Mr Mellows submitted that the date of effect for depressive disorder was 18 October 1986. Mr Mellows further submitted that the date of effect for PTSD was 30 July 1997 because the applicant did not lodge his Veterans' Review Board appeal within three months of the primary claim decision.the tribunal's findings reasons and decision At the outset the Tribunal would indicate that it is mindful that in these proceedings the four steps in decision-making as prescribed by the Full Court of the Federal Court in Deledio are applicable. They are as follows:"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." It is not in dispute, and the Tribunal so finds, that the applicant had operational service in Vietnam as outlined in paragraph 4 of these reasons. Whilst the applicant also had eligible defence service as outlined in that same paragraph, it is the former service which is relevant for present purposes. The applicant claims in these proceedings that he has two diseases which are war-caused (ie PTSD and depressive disorder). In addition to the four step prescription in Deledio, the Tribunal has the additional guidance of the reasoning of Wilcox J in Meehan v. Repatriation Commission [2001] FCA 597 and Williams v. Repatriation Commission [2001] FCA 601 – Meehan with respect to the applicable standard of proof regarding a disease as distinct from a particular ailment, disorder, defect or morbid condition such as PTSD – Williams with respect to the relevant SoP to be considered. It is clear from Meehan that the question whether a veteran suffers or did suffer a disease or injury, as distinct from a particular ailment, disorder, defect or morbid condition, is to be determined by the Tribunal "to its reasonable satisfaction" pursuant to s120(4) of the Act and that that standard of proof is not applicable as to whether a veteran suffers or did suffer a particular ailment, disorder, defect or morbid condition.

Ratio Decidendi

Legal Principle Established

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