Phillip Skinner and Repatriation Commission - [2013] AATA 751

[2013] AATA 751

Division VETERANS' APPEALS DIVISION

File Number

2011/2238

Re

Phillip Skinner

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 22 October 2013

Place Brisbane
The Tribunal affirms the decision under review.
.................[Sgd].......................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Defence service with Royal Australian Navy – Collision at sea – Statements of Principles for posttraumatic stress disorder – Diagnostic criteria for respect of posttraumatic stress disorder not met – Decision affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5, 14, 70, 120, 120B
CASES
O’Dowd v Repatriation Commission [2013] FCA 991

Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Stoddart (2003) 77 ALD 67
Repatriation Commission v Warren (2007) 95 ALD 606
White v Repatriation Commission [2004] FCA 633

Woodward v Repatriation Commission (2003) 131 FCR 473

SECONDARY MATERIALS
Statement of Principles concerning posttraumatic stress disorder No. 6 of 2008

REASONS FOR DECISION
Mr R G Kenny, Senior Member
22 October 2013
BACKGROUND

On 23 February 2010, Phillip Skinner (“the applicant”) lodged a claim under s 14 of the Veterans’ Entitlements Act 1986 (“the Act”) for a pension alleging that certain conditions, including posttraumatic stress disorder, were related, in accordance with s 70 of the Act, to his Royal Australian Navy (“RAN”) service. The claim for posttraumatic stress disorder was rejected by the Repatriation Commission (“the respondent”) on 10 May 2010 and by the Veterans’ Review Board on 28 March 2011.
SERVICE
The applicant’s RAN service was from 8 October 1967 until 27 August 1976 and from

8 February 1977 until 20 March 1988. His service on and after 7 December 1972 comprised defence service in accordance with s 70 of the Act.
CAUSATION
Subsection 70(1) of the Act provides that, where a member of the forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term “disease” is defined in s 5(1) of the Act to mean any physical or mental ailment, disorder, defect or morbid condition. The criteria of causation are set out in

s 70(5) of the Act and, accordingly, the disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service of the applicant.
Where defence service was rendered, the standard of proof applicable to the determination is set out in s 120(4) of the Act which requires that the matters are to be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The application of that provision is affected by the terms of s 120B(3) of the Act which reads:
[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an…

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 Phillip Skinner and Repatriation Commission

Details

AGLC: Phillip Skinner and Repatriation Commission [2013] AATA 751
Case: [2013] AATA 751
Decision Date

CaseChat Overview and Summary

Phillip Skinner, an applicant, was employed on the Yarra, a naval ship, when it collided with the Sydney, another naval ship. Skinner suffered an injury and claimed compensation under the Repatriation Commission. The dispute centered on whether the collision met the criteria for posttraumatic stress disorder, as outlined in the Statement of Principles. The matter was brought before the Federal Court of Australia for determination.

The central legal issue before the court was whether the incident during which Skinner was injured met the criteria for a diagnosis of posttraumatic stress disorder as defined by the relevant principles. The court had to consider the nature and circumstances of the incident, Skinner's observations and actions during the collision, and the subsequent impact on his mental health.

The court examined the evidence provided by both parties, including Skinner's own account of the incident and the respondent's arguments that the collision did not meet the criteria for posttraumatic stress disorder. The court concluded that the criteria for diagnosing the disorder were not met, and therefore, the causal factors in the Statement of Principles did not need to be considered. The court found that Skinner's experience and training were sufficient to enable him to complete his duties responsibly, and that the incident did not satisfy the necessary criteria for a diagnosis of posttraumatic stress disorder.

The Tribunal affirmed the decision under review, dismissing Skinner's claim for compensation under the Repatriation Commission.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the respondent, Mr Williams acknowledged that the collision between the Sydney and the Yarra occurred and that an alarm had been given on the Yarra to which the applicant responded by moving towards the bow of the Yarra to close various openings. He submitted that, in the centre of each of the hatches on 2 deck, there was a manhole which was able to be opened from below 2 deck when the hatch was closed and that, therefore, none of the men on 3 deck had been trapped. He submitted that the manholes were an essential component of the hatches as they enabled crew members to move through the ship as and when required whenever the hatches were closed. He noted that only 12 seconds elapsed between the sounding of the alarm and the collision and that the all clear signal was sounded about two minutes later. Mr Williams submitted that the applicant had not observed the collision and had only a brief glimpse through a porthole of the Sydney and that his substantial RAN experience had been sufficient to enable the applicant to complete his duties responsibly, including the immediate resumption thereof afterwards. He submitted that the incident did not satisfy the Statement of Principles for posttraumatic stress disorder and that the decision under review ought be affirmed. EVIDENCEThe applicant The applicant completed a detailed statement of the Sydney incident[2]. In his evidence, he said that, when he did so, his memory of the incident was “very foggy”. [2] Exhibit 1, T-Document 5, pp. 105-107. At the time of the Sydney incident, the applicant held the rank of Petty Officer on the Yarra with a range of responsibilities including machinery maintenance and ship husbandry. When the alarm sounded, he had just completed a four hour watch and was standing outside the galley in the main passageway which runs fore and aft through the vessel on 2 deck. He was waiting for the six members of his watch crew to have breakfast in the adjacent canteen and was speaking with a Petty Officer who was to relieve him. He was about midway between the bow and stern and was aware that a jackstay transfer was to occur. This involved the Sydney approaching the Yarra from astern, drawing parallel with and about 100 feet from the Yarra which was to maintain a steady course, matching speed with the Yarra and then discharging gun-lines across to the Yarra. These lines were then used to enable more substantial connections to be made between the vessels for the purposes of transferring personnel, supplies or equipment from vessel to vessel. The applicant had been involved with this jackstay transfer manoeuvre on many occasions. While speaking with the Petty Officer, he observed through a glass scuttle[3] in the Yarra’s galley that the Sydney was progressing alongside the Yarra but closer than was usual. “Within a split second”, he said, an alarm was sounded through the speaker system in terms:[4] Hands to emergency stations. Close all red openings. Brace for shock - Collision midships. [3] Also referred to as a porthole.[4] Exhibit 1, T-Document 5, p. 105.

Decision

Reasons for decision

As I am unable to confirm the criteria for a diagnosis of posttraumatic stress disorder, it is not necessary for the causal factors in the Statement of Principles to be considered. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2011/2238
Re	Phillip Skinner
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	22 October 2013
Place	Brisbane