Re Cranage and Repatriation Commission

Case [2000] AATA 1119

DECISION AND REASONS FOR DECISION [2000] AATA 1119

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V1999/1182

VETERANS' APPEALS DIVISION          )          
           Re      STEPHEN EDWARD CRANAGE
  Applicant
           And    REPATRIATION COMMISSION  
  Respondent

DECISION

Tribunal       Mr J. Handley, Senior Member    

Date18 December 2000

PlaceMelbourne

Decision      The decision under review is affirmed.   

………………………
  Senior Member

VETERANS' ENTITLEMENTS:   Applicant on board HMAS Swan during two short visits to Vung Tau Harbour; whether PTSD/Psychoactive Substance Abuse SoPs satisfied; whether "experienced a stressor" as defined; decision affirmed.

Repatriation Commission v Keeley 2000 98 FCR 108
Keeley v Repatriation Commission 1999 56 ALD 455
Reading and Repatriation Commission 2000 AATA 841
Ryan and Repatriation Commission 2000 AATA 849

Olsen and Repatriation Commission 2000 AATA 909

Budworth and Repatriation Commission 2000 AATA 127

Boyd and Repatriation Commission 2000 AATA 615

Howe and Repatriation Commission 1999 AATA 1006

Jehn and Repatriation Commission 2000 AATA 484

Mulvany and Repatriation Commission 2000 AATA 535

Slattery and Repatriation Commission 1998 52 ALD 90 at 106

Repatriation Commission v Deledio 1998 49 ALD 193 at 206

REASONS FOR DECISION

18 December 2000  Mr J. Handley, Senior Member     

  1. The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 12 November 1998 which affirmed a decision of the respondent made on 17 November 1997 which refused the applicant's claim for alcohol dependence and Post Traumatic Stress Disorder ("PTSD").

  2. The hearing of this application commenced in Wodonga and concluded in Melbourne.  The applicant was represented by Mr Moore and the respondent was represented by Mr Douglass.  Evidence was heard from the applicant and his son and Doctors Whitaker, Kenny and McFarlane.  A number of reports and other documents were received into evidence and will be referred to in this decision.

  3. The applicant is presently 51 years of age having been born on 28 July 1949.  He enlisted in the Australian Navy on 3 June 1967 and was discharged on 19 September 1972.  At all relevant times he was an Able Seaman/Mechanic and was engaged in operational service in Vietnam between 4 October 1971 and 14 October 1971 and between 8 December 1971 and 11 December 1971.

  4. The present application was the subject of a claim upon the respondent on 17 November 1997.  The applicable Statements of Principle at that date were No. 225 of 1995 entitled Post Traumatic Stress Disorder which amended Instrument No. 15 of 1994.  The amendment within Instrument No. 225 of 1995 is of no relevance to these proceedings and for the purposes of this decision Instrument No. 15 of 1994 will be adopted.  The applicable Statement of Principle with respect to alcohol dependence is Instrument No 5 of 1994 entitled "Psychoactive Substance Abuse or Dependence".

  5. The application proceeded on the basis that the Statement of Principle which existed at the date of primary claim should be observed in determining whether a reasonable hypothesis exists connecting injury with service.  This was because the Federal Court in Repatriation Commission v Keeley 2000 98 FCR 108 decided – in affirming a…

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AGLC
Re Cranage and Repatriation Commission [2000] AATA 1119
Case
[2000] AATA 1119
Decision Date

CaseChat Overview and Summary

The matter of Re Cranage and Repatriation Commission involves an applicant who is seeking a review of a decision made by the Repatriation Commission regarding his claim for compensation due to alleged Post-Traumatic Stress Disorder (PTSD) and alcohol dependence. The case was heard in the Federal Court of Australia. The applicant's primary contention is that his service in the navy contributed to his current chronic alcohol dependence and PTSD, and he is seeking to overturn the Commission's decision that his alcohol dependence and PTSD are not service-connected.

The primary legal issues the court had to address were whether the applicant's alcohol dependence and PTSD were connected to his service in the navy, and if so, to what extent. The court had to determine whether the applicant's alcohol dependence and PTSD met the criteria set out in the relevant legislation and whether the evidence provided by the applicant and the expert witnesses was sufficient to establish a causal link between the applicant's service and his current conditions.

In its decision, the court noted that while the applicant's drinking pattern was similar to many Australian males without service experience, his vulnerability and exposure to a heavy drinking culture during his service may have contributed to his chronic alcohol problems. However, the court found that it was almost impossible to determine the actual significance of the applicant's service in relation to his current alcohol dependence. Regarding PTSD, the court held that the existence of PTSD alone would not be sufficient to establish a causal link between the applicant's service and his current condition. The court held that the applicant must establish that he "experienced a stressor" prior to the clinical onset of PTSD. The court found that the respondent's interpretation of "experiencing a stressor" was sound and adopted part of the decision in Re Slattery to clarify the meaning of the term.

Ultimately, the court found that the applicant had not established a causal link between his service and his current alcohol dependence and PTSD. The court dismissed the applicant's appeal and affirmed the decision of the Repatriation Commission. The court held that the applicant's alcohol dependence and PTSD were not connected to his service in the navy, and therefore, he was not entitled to compensation for those 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

With respect to alcohol dependence Dr Percival said that whilst many Australian males display a similar drinking pattern as Mr Cranage without any service- experience he nonetheless noted that the applicant was a vulnerable young man when he enlisted, was exposed to a heavy drinking culture and was at risk of progressing to frank and long term dependence. He said his naval service "may have made some contribution, the actual significance of which is almost impossible to determine, to his current chronic problems with alcohol".conclusion and reasons for decision An issue in this review was whether the applicant did suffer PTSD. Dr Whitaker his treating psychiatrist said he did. Doctors Kenny and Percival who consulted for the respondent said he did not. No submissions were made as to whether PTSD should be determined upon the evidence of the doctors or by reference to the Statement of Principle (Refer: Re Slattery and RepatriationCommission 1998 52 ALD 90 at 106.) It is assumed that the medical witnesses reached their respective conclusions based on their observations of the applicant, his history and their expertise. It is also assumed that they had regard to DSM-IV. But the existence of PTSD whether as diagnosed or found as a fact by references to the Statement of Principle will not alone be sufficient. The applicant must, by reason of Factor 1(a) establish that he "experienced a stressor" prior to the clinical onset of PTSD. "Experiencing a stressor" is therefore a precondition. It must have occurred before the clinical onset of PTSD. The diagnostic criteria of DSM-IV does not mandate this. The definition of "experiencing a stressor" is a derivation from Part A of the diagnostic criteria. The definition of PTSD is a virtual facsimile of the entire diagnostic criteria (which also includes Part A). Whether an applicant has PTSD must eventually be a question of fact. It will be determined by reference to the evidence of doctors and whether the criteria found within the Statement of Principle has been satisfied. "Experiencing a stressor" is reproduced earlier but for the purposes of this analysis it is again reproduced as follows:"experiencing a stressor means the following (derived from DSM-IV):(a) the person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury or a threat to the person's or other people's physical integrity; and(b) the person's response to that event involved intense fear, helplessness or horror." The respondent submitted that: The Statement of Principle is a legislative instrument. It is a disallowable instrument under s46A of the Acts Interpretation Act and is subject to rules of statutory interpretation. On this basis I am satisfied that the submissions made by the respondent as to the manner in which "experiencing a stressor" should be interpreted are sound. I can do no better than to adopt part of the decision in Re Slattery at paragraph 79 as follows:"the word "witnessed" suggests that the person was present at the event involving real or present (i.e. actual) or threatened death. The word "experienced" suggests that the person observed or encountered such an event and the word "confronted" that he or she was faced with such an event."

Ratio Decidendi

Legal Principle Established

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