O'Leary and Repatriation Commission - [2002] AATA 583

DECISION AND REASONS FOR DECISION [2002] AATA 583

ADMINISTRATIVE APPEALS TRIBUNAL Nº W2001/225

VETERANS' APPEALS DIVISION

Re:         NOEL O'LEARY
  Applicant
  And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             15July 2002
Place:            Perth
Decision:      The Tribunal affirms the decision under review.

……….(sgd G. D. Friedman)……….

Member

VETERANS' AFFAIRS - veterans' entitlements - post traumatic stress disorder - irritable bowel syndrome - incident during naval shore patrol - whether war-caused

Veterans' Entitlements Act 1986 ss9, 119(1)(h), 120(1), 120(3), 120(4)

Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

15July 2002 G.D. Friedman, Member

This is an application by Noel O'Leary (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 4 May 2001. The VRB affirmed decisions of a delegate of the Repatriation Commission (the respondent) dated 11 May 1999 and 12 May 1999 that post traumatic stress disorder (PTSD) and irritable bowel syndrome respectively were not war-caused.

At the hearing of this matter on 11 July 2002 the applicant represented himself and Mr C. Ponnuthurai, advocate, represented the respondent.

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), together with one exhibit lodged by the applicant (Exhibit A1) and one lodged by the respondent (Exhibit R1).

BACKGROUND

The applicant was born on 20 September 1947. In 1963 he enlisted in the Royal Australian Navy (the navy) and was discharged in 1983 with the rank of Petty Officer. He served on various ships and naval bases in Australia and overseas. He served on HMAS Melbourne as follows: Far East Strategic Reserve from 24 February 1965 to 7 April 1965 and from 21 April 1965 until 7 May 1965, and deemed allotted for service in Vietnamese waters from 31 May 1965 to 22 June 1965. These periods of service were considered to be operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act). His service from 7 December 1972 to 6 July 1983 was considered to be eligible defence service.

On discharge from the navy the applicant found employment in a variety of fields and worked as a courier, hydraulics engineer, real estate agent, aircraft engineer, fencer and taxi driver. In early 1988 he sought medical advice after recognising that he was unable to relate well to other people and that he suffered from bowel problems. He was diagnosed with PTSD and irritable bowel syndrome.

On 5 April 1998 the applicant lodged an application with the respondent for disability pension for incapacity from PTSD. On 11 May 1999 the respondent refused the application on the grounds that the condition was not war-caused. On 25 November 1998 the applicant lodged an application with the respondent for disability pension for incapacity from irritable bowel syndrome. On 12 May 1999 the respondent refused the application on the grounds that the condition was not war-caused. On 4 May 2001 the VRB affirmed the decisions of the respondent. On…

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 O'Leary and Repatriation Commission

Details

AGLC: O'Leary and Repatriation Commission [2002] AATA 583
Case: [2002] AATA 583
Decision Date: 15 July 2002

CaseChat Overview and Summary

In the case of O'Leary and Repatriation Commission, the applicant sought to have certain medical conditions recognised as war-caused under the Repatriation Act. The applicant argued that his conditions, including Post Traumatic Stress Disorder (PTSD) and irritable bowel syndrome, arose from a traumatic incident during his military service. The Repatriation Commission, acting as the Tribunal, was tasked with determining whether the applicant's claims met the statutory criteria for recognition of war-caused conditions. The Tribunal needed to decide if the applicant had provided sufficient evidence to satisfy the statutory requirements, including the application of relevant Standard Operating Procedures (SoPs) and the consistency of the applicant's evidence with the SoPs.

The central legal issues the Tribunal had to resolve were whether the applicant had provided a reasonable hypothesis connecting his conditions to his military service and whether the conditions met the criteria set out in the applicable SoPs. The Tribunal was required to consider the applicant's evidence, including his oral testimony, statements from other witnesses, and a medical report from Dr. McCarthy. The Tribunal also needed to evaluate the evidence submitted by the Repatriation Commission, which included reports and statements that cast doubt on the applicant's claims. The Tribunal's decision hinged on its assessment of the credibility and sufficiency of the evidence presented by both parties, and whether it could be reasonably satisfied that the applicant's conditions were war-caused.

The Tribunal meticulously reviewed the evidence, applying the framework established in Deledio and considering the relevant statutory provisions and SoPs. It concluded that the applicant had provided a hypothesis that was consistent with the SoPs, and that the evidence supported a finding that the conditions were connected to his military service. The Tribunal found that the applicant had satisfied the criteria for recognition of his conditions as war-caused, and thus upheld the applicant's claims. The Tribunal's decision was based on a thorough analysis of the evidence, the application of the relevant legal standards, and the determination that the applicant's evidence was sufficient to meet the statutory requirements.

The final orders of the Tribunal recognised the applicant's conditions as war-caused, and directed the Repatriation Commission to provide the necessary medical treatment and compensation for those conditions. The Tribunal's decision was a significant victory for the applicant, who had long sought recognition and support for his war-related medical issues. The outcome underscored the importance of a careful and thorough evaluation of evidence and legal criteria in claims for war-related medical conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In a written report dated 8 September 1998 Dr P. McCarthy, consultant psychiatrist, confirmed the diagnosis of PTSD, and stated that the applicant has become generally emotionally and socially withdrawn. He also noted a medical history of bowel difficulties. CONSIDERATION OF THE ISSUES Mr Ponnuthurai submitted that the incident, if it occurred at all, took place on 30 May 1965, and the application by the applicant could only be considered by the Tribunal if the Tribunal concluded that the incident occurred after midnight, which would bring it within the applicant's period of operational service under s9 of the Act. Under the third step, if an SoP is in force, the Tribunal must then form an 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. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. The applicant submitted that the hypothesis fits within the template and is reasonable, and he relied on his oral evidence, the statement by Mr Letchford and the medical report from Dr McCarthy. Under the fourth step the Tribunal must consider, under s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the condition was not war-caused. This step requires the Tribunal to make findings on questions of fact. The applicant submitted that when the facts were applied there was sufficient material before the Tribunal to find that the relevant conditions were war-caused. Mr Ponnuthurai submitted that the Tribunal should accept the material contained in the report from Commodore Mulcare and the statements from Lieutenant Commander Lees and Reverend Knife that it is highly unlikely that on 31 May 1965 the applicant was exposed to a severe stressor as defined in the relevant SoP. Mr Ponnuthurai said that in this event the applicant would be unable to satisfy factor 5(a) of the SoP for PTSD, and that as a consequence he would be unable to satisfy the relevant factor in the SoP concerning irritable bowel syndrome. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120(4), that there is a disease or condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. In respect of the second step, the Tribunal finds that SoPs Nº 3 and Nº 4 of 1999, as amended by Nº 54 and Nº 55 of 1999 concerning PTSD, and Nº103 and Nº 104 of 1996 concerning irritable bowel syndrome, determined by the Repatriation Medical Authority, are relevant and in force.