Patterson v Repatriation Commission - [2006] FCA 538

FEDERAL COURT OF AUSTRALIA
Patterson v Repatriation Commission [2006] FCA 538
DEFENCE AND WAR – veterans’ entitlements – claim for hypertension arising out of eligible war service in Vietnam – Held: Administrative Appeals Tribunal erred in making findings of fact as to factors prescribed by Statement of Principles and placing onus of proof on applicant
Veterans’ Entitlement Act 1986 (Cth) ss 9(1)(b), 120, 120A(3)
Patterson and Repatriation Commission [2005] AATA 758 discussed
Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 applied
Delediov Repatriation Commission (1997) 47 ALD 261 at 275 discussed
East v Repatriation Commission (1987) 16 FCR 517 cited
DAVID MITCHELL PATTERSON v REPATRIATION COMMISSION
NO VID 1059 of 2005
HEEREY J
12 MAY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1059 of 2005

BETWEEN:

DAVID MITCHELL PATTERSON
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

12 MAY 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The determination of the Administrative Appeals Tribunal made on 9 August 2005 is set aside.
3.The applicant’s claim is remitted to the Tribunal differently constituted for further consideration according to law.
4.The respondent pay the applicant’s costs of the appeal, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1059 of 2005

BETWEEN:

DAVID MITCHELL PATTERSON
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

HEEREY J

DATE:

12 MAY 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant Mr David Patterson claims that his condition of hypertension arose out of, or was attributable to, his eligible war service in Vietnam, within the meaning of s 9(1)(b) of the Veterans’ Entitlement Act 1986 (Cth) (the Act). The rejection of his claim by the respondent Repatriation Commission and the Veterans’ Review Board was affirmed by the Administrative Appeals Tribunal: Patterson and Repatriation Commission [2005] AATA 758. Mr Patterson now appeals to this Court.
The relevant Statement of Principles (SoP) concerning hypertension for the purposes of s 120A(3) of the Act, No 35 of 2003, provides by cl 4 that at least one of the factors in cl 5 “must be related to any relevant service rendered”. The factors in cl 5 include:
“(a) being obese at the time of the clinical onset of hypertension; or
(b) consuming an average of at least 200 g per week of alcohol which cannot be decreased to less than an average of 200 g per week at the time of the clinical onset of hypertension; or
(c) ingesting at least 12 g of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension.”
Mr Patterson served as a gunner in the Australian Army in Vietnam from 4 February until 30 October 1971. His clinical onset of hypertension occurred in 1978.
Mr Patterson contended that the material before the Tribunal raised three hypotheses…

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 Patterson v Repatriation Commission

Details

AGLC: Patterson v Repatriation Commission [2006] FCA 538
Case: [2006] FCA 538
Decision Date: 12 MAY 2006

CaseChat Overview and Summary

Patterson v Repatriation Commission involved a claim by Mr Patterson for compensation in respect of hypertension allegedly caused by his service in Vietnam. The dispute was heard and determined by the Administrative Appeals Tribunal and subsequently appealed to a higher court. The central legal issues were whether Mr Patterson's hypertension was caused by his service in Vietnam and, if so, to what extent it was attributable to war-related factors such as stress, alcohol consumption, and dietary habits.

The court examined the evidence provided by Mr Patterson, which detailed his lifestyle changes during and after his service in Vietnam. It noted that Mr Patterson attributed his hypertension to his increased consumption of alcohol and salty foods, both of which he consumed regularly during his service and continued after his discharge. The Tribunal found that while the obesity hypothesis was reasonable, it was not sufficient to conclude that the hypertension was war-caused. The alcohol and salt hypotheses were rejected as they were not supported by the Standard of Proof (SoP). The Tribunal concluded that there was insufficient evidence to determine that the hypertension was caused by Mr Patterson's service in Vietnam.

The court, upon appeal, found that the Tribunal had erred in its application of the SoP and its assessment of the evidence. The appeal was allowed, the Tribunal's decision was set aside, and the matter was remitted to the Tribunal for reconsideration. The respondent was ordered to pay the applicant's costs of the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The determination of the Administrative Appeals Tribunal made on 9 August 2005 is set aside.

3. The applicant’s claim is remitted to the Tribunal differently constituted for further consideration according to law.

4. The respondent pay the applicant’s costs of the appeal, including reserved costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HEEREY J

In its reasons for decision the Tribunal found that the obesity hypothesis was a reasonable one raised by the material before it (s 120(3)) but that it was satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that Mr Patterson’s hypertension was war-caused (s 120(1)). It found that the alcohol and salt hypotheses were not reasonable (s 120(3)) because they were not upheld by the SoP (s 120A(3)).The Tribunal’s decision Under the heading “Evidence” the Tribunal summarised the evidence given by Mr Patterson, which was to the following effect. His hypertension was diagnosed in 1978. Prior to this he had no idea that his blood pressure was elevated. During his service in Vietnam he started eating potato chips, salted peanuts and salted cashews in the canteen initially as an accompaniment to a glass of beer but later as a snack away from the canteen. Before his service in Vietnam he had eaten such salty snack foods only infrequently but by the time of his discharge they were a regular part of his diet. Before his army service he was a light social drinker. During his service in Vietnam he began to drink regularly. When he was not on duty he consumed alcohol (one to two small cans of full strength beer) and salty snack foods daily. After his discharge he continued to consume beer virtually daily, at a hotel with lunch on one or two days weekly and in the evenings. At the time of his discharge his weight was almost the same as on enlistment. However his weight increased after army service and by 1978 he considered himself to be obese (105 kg) which he attributed to his consumption of alcohol and salty snack foods. He said that his service in Vietnam contributed to his weight gain because his diet and exercise were otherwise fairly similar to pre-enlistment levels. He estimated his consumption of beer after his discharge until the time of diagnosis to be more than 20 standard drinks of alcohol per week on average. Following his Vietnam service he began to add salt to his meals because the food tasted bland without it. He estimated that he was consuming at least 12 grams of salt per day at the time of diagnosis of hypertension in 1978. In Vietnam his role was to calculate the settings on artillery to support infantry in the field. This was a precise and stressful task. The stress and tension, plus the hot and humid climate caused him to sweat profusely which contributed to his increased beer consumption. In the field there was no access to alcohol but he spent most of the time in Nui Dat and Vang Tau where there was ready access to beer. He estimated his alcohol consumption per week in the six months prior to the diagnosis of hypertension in 1978 as follows (emphasis in original):“Counter meals: 2-3 glasses X 2 to 3 times per week = Average 6.25 glasses = 62.5 gramsFriday evening after work: 3-5 glasses = Average 4 standard glasses = 40 gramsOther weekday evenings at home: a large bottle once or twice a week = 1.5 X 4 standard glasses = 6 standard glasses = 60 gramsWeekends: A large bottle on one or both days (some times more) = Average 6 standard glasses = 60 gramsTOTAL = 222.5 grams”

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1059 of 2005

BETWEEN:	DAVID MITCHELL PATTERSON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	12 MAY 2006
WHERE MADE:	MELBOURNE

JUDGE:	HEEREY J
DATE:	12 MAY 2006
PLACE:	MELBOURNE