MICHAEL TRIGGE and REPATRIATION COMMISSION

Case [2012] AATA 176

[2012] AATA 176

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2020

Re

MICHAEL TRIGGE

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 23 March 2012
Place Brisbane

The Tribunal sets aside the decision under review in relation to PTSD and alcohol dependence; substitutes its decision that those conditions are war-caused under the Act; determines that pension is payable for incapacity from those conditions with effect from 10 May 2009; and remits the matter of assessment of pension to the Repatriation Commission.

...........[Sgd]......................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – diagnosis of posttraumatic stress disorder (PTSD) and alcohol dependence – clinical onset of alcohol dependence – a reasonable hypothesis of relevant relationship to service raised for PTSD and alcohol dependence – not satisfied beyond reasonable doubt that PTSD and alcohol dependence not attributable to eligible war-service – PTSD and alcohol dependence  war-caused – decision under review set aside – matter of assessment remitted to Repatriation Commission

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A, 177

CASES

Border and Repatriation Commission [2010] FCA 1430

Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Mann and Repatriation Commission [2008] AATA 163
Newton and Repatriation Commission [2009] AATA 485
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Stoddart (2003) 38 AAR 176
Woodward v Repatriation Commission (2003) 75 ALD 420

SECONDARY MATERIALS

Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008

Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 1 of 2009

REASONS FOR DECISION

Mr R G Kenny, Senior Member

23 March 2012

BACKGROUND

  1. Michael Trigge served with the Royal Australian Navy (“the RAN”) from 6 July 1964 until 19 February 1971. On 10 August 2009, he lodged a claim, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission (“the respondent”) for a disability pension for “anxiety disorder” and “alcohol dependence” which he contended were related to his RAN service. His application form also included a reference by his general practitioner from Kingaroy Family Care[1] to posttraumatic stress disorder (“PTSD").

    [1] This appeared to be signed by Dr Akshay Wadegasnkar.

  2. On 25 August 2009, the respondent determined that the claimed conditions were not related to Mr Trigge’s service. On 1 March 2011, the Veterans’ Review Board affirmed the decision, determining that no diagnosis of PTSD was open on the evidence before it and that the diagnosed conditions of generalised anxiety disorder and alcohol dependence were not related to Mr Trigge’s service. The matter came before the Tribunal where it is was common ground between the parties that the conditions for determination were PTSD and alcohol dependence.

    ISSUES AND SERVICE

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AGLC
MICHAEL TRIGGE and REPATRIATION COMMISSION [2012] AATA 176
Case
[2012] AATA 176
Decision Date

CaseChat Overview and Summary

In the case of Michael Trigge and the Repatriation Commission, the primary issue was whether the respondent had made an error in its assessment of Mr Trigge's eligibility for a pension under the Veterans' Entitlements Act 1986 (Cth). Specifically, the dispute centred on the determination of whether Mr Trigge's posttraumatic stress disorder (PTSD) and alcohol dependence were caused by his service in the Royal Australian Navy (RAN) during the Vietnam War. The Federal Court of Australia was called upon to review the decision made by the Repatriation Commission and determine if the respondent had correctly assessed Mr Trigge's eligibility for a pension for incapacity due to his diagnosed conditions.

The legal issues before the court included whether the Repatriation Commission had applied the relevant provisions of the Veterans' Entitlements Act correctly, particularly in relation to the consideration of Statements of Principles issued by the Repatriation Medical Authority. The court was also required to determine if the Repatriation Commission had adequately established that Mr Trigge's PTSD and alcohol dependence were not attributable to his war service, or if a reasonable hypothesis of a relevant relationship between the conditions and his service could be established. Furthermore, the court had to consider the evidentiary burden and whether the Repatriation Commission had satisfied the requisite standard of proof beyond reasonable doubt.

The court found that the Repatriation Commission had erred in its assessment by not adequately considering the evidence presented by Mr Trigge and the relevant Statements of Principles. The court determined that a reasonable hypothesis of a relevant relationship between Mr Trigge's PTSD and alcohol dependence and his service in the RAN could be raised. The Tribunal concluded that the Repatriation Commission had not satisfied the standard of proof beyond reasonable doubt that Mr Trigge's conditions were not attributable to his war service. Consequently, the court held that Mr Trigge's PTSD and alcohol dependence were war-caused, and the decision under review was set aside. The matter was remitted to the Repatriation Commission for reassessment of the pension payable to Mr Trigge.

The final orders of the court included setting aside the decision of the Repatriation Commission regarding Mr Trigge's eligibility for a pension for incapacity due to PTSD and alcohol dependence. The court substituted its decision that these conditions were war-caused and determined that pension should be payable from 10 May 2009, three months prior to the date of Mr Trigge's initial claim. The court remitted the matter to the Repatriation Commission for reassessment of the pension payable to Mr Trigge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The application of that provision is affected by the terms of ss 120(3) and 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (“RMA”). EVIDENCE Mr Trigge Mr Trigge was born on 8 October 1948. At 15 years of age he followed a family tradition of enlisting in the RAN. This was for a period of 12 years although he served for only six and a half years. He trained initially at HMAS Leeuwin (“Leeuwin”), and then on HMAS Derwent (“Derwent”), which was in dry dock, before further training at sea on HMAS Anzac (“Anzac”). He then completed training as an engineer at HMAS Cerberus (“Cerberus”) before being posted to HMAS Melbourne (“Melbourne”) from March 1967 to April 1968 where he served as a stoker and voyaged to and from Japan, Hong Kong and Singapore. He travelled to the United States of America to join the new vessel HMAS Brisbane (“Brisbane”) as part of the crew working it up for deployment in the RAN. This posting lasted almost 12 months and included three months of on-shore training, sea trials and the return voyage to Australia. He was posted to HMAS Albatross (“Albatross”) from January to February 1969 where he completed driver training. He was then posted to HMAS Penguin (“Penguin”) as a driver until 3 July 1970, during which period he was married on 6 June 1970. On Friday 3 July 1970, he was posted to the Hobart and, after a flight from Australia, joined the ship in Subic Bay on Monday 6 July 1970. Mr Trigge described his transfer to the Hobart as being “crash posted” because of the short notice with which it occurred. The Hobart proceeded to sea on Tuesday 7 July 1970 for passage to South Vietnam and, at 1454 hours on Saturday 11 July 1970, anchored off the coast to carry out firings at on-shore targets. The ship was closed up at Operation Awkward State 2 employing full anti-swimmer precautionary measures including the periodic dropping overboard of scare charges. Mr Trigge served as a stoker on the Hobart but, when at action stations, he was a communications number located with another seaman in a communication post, a cabin some eight feet long by two feet wide. His task was to carry out damage control watch by listening, using ear phones, to any reports of damage which he was then required to pass on to another post on the Hobart. The communication cabin was towards the rear of the ship, immediately adjacent to the exterior hull, and Mr Trigge’s evidence was that it was at about or just below the water-line. On 11 July 1970, Mr Trigge was sitting at a desk in the communication cabin when he heard a “huge explosion” right beside him. His immediate feeling was that the ship had been hit by enemy fire and his reaction was to leave the communication cabin as soon as possible. The other seaman was lying on the floor asleep at the time and Mr Trigge could not recall if he woke him or whether the noise of the explosion did so. Mr Trigge recalled his training in the USA which included being in a section of a ship’s hull which was immersed in a large water tank. As part of a training exercise, he and others had been required to prevent it from flooding after valves were opened allowing water to enter the hull. Mr Trigge learned at that time that there was no way to stop the water and, on the Hobart, he feared that damage to the hull would allow water to flood the communication cabin and that he would drown. He feared for his life. He stepped out of the cabin but was unable to close the hatch to make the cabin watertight because the other seaman was lying across the hatchway. Within a short time, the other seaman laughed and told him that the source of the noise was a scare charge.

Decision

Reasons for decision

Mr Trigge is entitled to receive a pension for incapacity in relation to those conditions with effect from 10 May 2009, a date three months before his initial claim was lodged with the respondent and the earliest date that can be set under the Act.[17][17] See s 177 of the Act. This date was agreed to by the parties.DECISION The Tribunal sets aside the decision under review in relation to PTSD and alcohol dependence; substitutes its decision that those conditions are war-caused under the Act; determines that pension is payable for incapacity from those conditions with effect from 10 May 2009; and remits the matter of assessment of pension to the Repatriation Commission.

Ratio Decidendi

Legal Principle Established

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