Peter Robert Elton and Repatriation Commission - [2014] AATA 475

[2014] AATA 475

Division VETERANS' APPEALS DIVISION

File Number

2012/4535

Re

Peter Robert Elton

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
G. D. Friedman, Senior Member

Date 15 July 2014

Place Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that alcohol use disorder and cannabis use disorder are war-caused with effect from 28 November 2010.
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G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – alcohol use disorder – stressful events – whether condition war-caused – cannabis use disorder – whether condition diagnosed and war-caused
Legislation
Veterans' Entitlements Act 1986 ss 9, 120(1)
Statement of Principles Instrument No 1 of 2009 (Alcohol Dependence and Alcohol Abuse)
Statement of Principles Instrument No 29 of 2014 (Alcohol Use Disorder)
Statement of Principles Instrument No 3 of 2009 (Drug Dependence and Drug Abuse)
Statement of Principles Instrument No 31 of 2014 (Substance Use Disorder)
Cases
Benjamin v Repatriation Commission [2001] FCA 1879
Border v Repatriation Commission (No. 2) [2010] FCA 1430
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82

Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Washington DC, American Psychiatric Association, 2013 (DSM-5)

REASONS FOR DECISION

G. D. Friedman, Senior Member
15 July 2014

Peter Elton served in the Royal Australian Navy from 7 July 1968 to 21 January 1972. His service on HMAS Sydney from 17 November 1969 to 5 December 1969 and from 16 February 1970 to 5 March 1970 in Vietnam constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
On 28 February 2011 he lodged a claim for incapacity from substance abuse drugs & alcohol arising from stressful events during his service. His claim for marijuana abuse (in full remission) and alcohol dependence was refused and the Veterans’ Review Board (VRB) affirmed the decision. Mr Elton seeks review of the decision.
LEGAL FRAMEWORK
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war‑caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Elton has rendered operational service, the issue of whether any diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
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…

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 Peter Robert Elton and Repatriation Commission

Details

AGLC: Peter Robert Elton and Repatriation Commission [2014] AATA 475
Case: [2014] AATA 475
Decision Date

CaseChat Overview and Summary

The case of Peter Robert Elton and the Repatriation Commission involved a dispute over the causation of Mr Elton's alcohol and cannabis use disorders in relation to his service in the Australian Defence Force. The matter was brought before the tribunal for review of a decision made by the Commission regarding the compensation for these disorders. The tribunal was tasked with determining whether these disorders were caused by Mr Elton's military service, a decision which could affect his entitlement to benefits under the Veterans' Entitlements Act 1986.

The primary legal issue before the tribunal was to ascertain whether Mr Elton's alcohol and cannabis use disorders were war-caused, as defined in the relevant statutory provisions and associated guidelines. This involved a multi-step analysis based on the statutory framework and the Schedule of Provisions (SoP) Nº 3 of 2009. The tribunal had to determine whether the traumatic events experienced by Mr Elton during his service, such as the typhoon event, the flight deck incident, and the Vung Tau event, met the criteria for a category 1A stressor and whether these events were connected to the onset of his disorders.

The tribunal concluded that the typhoon event was indeed a life-threatening and severe traumatic event, satisfying the criteria of a category 1A stressor. It found that the onset of Mr Elton's cannabis use disorder occurred after his first visit to Vietnam, and thus, the typhoon event was the triggering factor for his disorder. Given these findings, the tribunal was satisfied beyond reasonable doubt that Mr Elton's cannabis use disorder was war-caused. Consequently, the tribunal set aside the original decision of the Commission and determined that both the alcohol and cannabis use disorders were war-caused, effective from 28 November 2010.

In summary, the tribunal's decision recognised that the traumatic events Mr Elton experienced during his service were sufficient to classify his cannabis use disorder as war-caused. As a result, Mr Elton's entitlement to benefits for these disorders was upheld, and the previous decision of the Repatriation Commission was overturned.

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

In relation to the fourth step from Deledio, for reasons similar to those given in respect of alcohol use disorder, as none of the facts necessary to support the hypothesis has been disproved the Tribunal is satisfied, on the whole of the material, that the typhoon event was life-threatening and constitutes a severe traumatic event as defined in SoP Nº 3 of 2009, and was a category 1A stressor The Tribunal finds that the clinical onset of cannabis use disorder was after the first visit to Vietnam. Therefore Mr Elton meets factor 6(b) of the SoP and satisfies the fourth step, and there is no need for the Tribunal to consider the flight deck event or the Vung Tau event. The Tribunal is not satisfied beyond reasonable doubt that Mr Elton’s cannabis use disorder is not war-caused.DECISION The Tribunal sets aside the decision under review and substitutes a decision that alcohol use disorder and cannabis use disorder are war-caused with effect from 28 November 2010.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2012/4535
Re	Peter Robert Elton
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	G. D. Friedman, Senior Member
Date	15 July 2014
Place	Melbourne