Riley and Repatriation Commission

Case [2001] AATA 418

DECISION AND REASONS FOR DECISION [2001] AATA 418

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N1998/1230

VETERANS' APPEALS  DIVISION       )          
           Re      Donald William RILEY     
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs M T Lewis, Senior Member   

Date18 May 2001

PlaceSydney

Decision       The Tribunal –  1.   Varies the decision under review, being that part of the decision of the Repatriation Commission dated 24 August 1995 that refers to "Chronic Depressive Illness with Secondary Alcohol Dependance (sic)" by changing the diagnosis to read "Generalised Anxiety Disorder" and "Alcohol Dependence", and  2.   Affirms that part of the decision under review, as varied.           
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
  VETERANS' AFFAIRS – Entitlement – operational service – whether reasonable hypothesis that anxiety disorder related to war-service – whether reasonable hypothesis that alcohol abuse related to war-service - whether reasonable hypothesis was dispelled beyond reasonable doubt

Connors v Repatriation Commission (2000 59 ALD 61
Johnston v Commonwealth of Australia (1982) 150 CLR 331
Re Howe and Repatriation Commission [1999] AATA 1006
Re Hughes and Repatriation Commission [2000] AATA 571
Re Mackay and Repatriation Commission [2000] AATA 483
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Wedekind [2000] FCA 649 
Repatriation Commission v Yates (1995) 38 ALD 80. 

Statement of Principles Instrument No. 48 of 1994 (Generalised Anxiety Disorder)
Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

Veterans' Entitlements Act 1986: ss120(1), 120(3), s120(A)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member               

  1. This is a review of that part of a decision of a Delegate of the Repatriation Commission ("the Respondent") dated 24 August 1995 that refused the claim of Donald William Riley ("the Applicant") in respect of a condition diagnosed by the Respondent as chronic depressive illness with secondary alcohol dependence.  That part of the decision was reviewed by the Veterans' Review Board ("the VRB") on 7 April 1998 and affirmed.  The Applicant was notified of the VRB decision by letter dated 22 July 1998.  He then lodged an application for review by this Tribunal on 2 September 1998. 

  2. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

  • Reports of Dr Peter Klug, psychiatrist, dated 2 March 1999 and 30 March 1999 (exhibit A);

  • DSM-IV Diagnostic criteria for Separation Anxiety Disorder (exhibit B);

  • Review of Service Entitlement Anomalies in Respect of South-East Asian Service 1955-75, by Major General R F Mohr (exhibit C).

  1. The following documents were tendered on behalf of the Respondent –

  • Report of Dr Robert D Lewin, psychiatrist, dated 17 May 1999 (exhibit 1);

  • Reports of Mr Brendan O'Keefe, historian, dated 1 February 2000 (exhibit 2) and 1 June 2000 (exhibit 3);

  • Clinical record of R Stannard, psychologist, in respect of Applicant, dated 21 July 1966 (exhibit 4).

  1. The Applicant gave oral evidence at the hearing.  Oral evidence…

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AGLC
Riley and Repatriation Commission [2001] AATA 418
Case
[2001] AATA 418
Decision Date

CaseChat Overview and Summary

The matter before the Court was an appeal against a decision of the Repatriation Commission, which declined to grant the applicant veteran's compensation for anxiety disorder and alcohol abuse. The applicant, who had served in the Royal Australian Air Force during the Vietnam War, contended that his anxiety disorder and alcohol abuse were related to his operational service. The Court of Appeal was tasked with determining whether the Repatriation Commission's decision was legally sound and whether the applicant's claims were substantiated.

The primary legal issue for the Court was whether there was a reasonable hypothesis that the applicant's anxiety disorder and alcohol abuse were related to his war service. The Court had to consider the evidence presented by the applicant and determine if it was sufficient to establish a causal link between the claimed conditions and the applicant's service. The Court also had to evaluate if the Repatriation Commission correctly applied the relevant legislative provisions and Statements of Principles in its decision-making process.

The Court examined the evidence provided by the applicant, which detailed the stressful and traumatic experiences he encountered during his service, including exposure to constant bombing missions, terrorist attacks, and the handling of injured and deceased soldiers. The Court noted that the applicant's anxiety disorder and alcohol abuse could have been triggered by these experiences. However, the Court found that the applicant's evidence was not sufficient to establish a reasonable hypothesis that his conditions were related to his war service. The Court held that the applicant's claims were not substantiated, as the evidence did not support a causal link between his service and the claimed conditions.

As a result of the Court's findings, the appeal was dismissed, and the Repatriation Commission's decision was upheld. The Court did not grant the applicant compensation for his claimed anxiety disorder and alcohol abuse, as it was not satisfied that a reasonable hypothesis existed to support a causal connection to his war service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As the Applicant had operational service, and as the claim relates to that operational service, the matter falls for consideration pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). The Applicant lodged his claim after 1 June 1994 and therefore s120A of the Act also applies. Relying on the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 31 AAR 150, the Applicant sought to rely on his accrued rights. Therefore the relevant Statements of Principles to be applied in this case are those that were applicable at the time the primary decision was made, being Instrument No. 48 of 1994 for Generalised Anxiety Disorder and Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence.evidenceApplicant The Applicant said that at Ubon they were accommodated in huts situated about 200 metres from the airstrip. He said that aircraft involved in bombing missions were taking off or landing every four minutes, throughout a 24-hour period. The Applicant was deployed as an aerodrome defence guard. He said that Vietcong terrorists were found getting through the fence to the airstrip while attempting to throw dynamite at phantom bombers. He said this made him feel "pretty on edge". He said there was a fuel dump close to their huts and terrorists used to throw rocks there at night time. The Applicant referred to an occasion during an 'alert' when he and others were "in the trench" and he was ordered to leave the trench to get drums of water. He indicated that when the 'alert' changed from 'amber' to 'red' he had failed to get the water before he entered the trench. When he retorted "what if I get shot?" he was advised to the effect that he was dispensable because of his mustering. He said he was in the trench for seven or eight hours and "just kept guard". He also said "when the red alerts went on we were out guarding perimeters of a night time". He said that he never knew when an amber alert would occur and at those times "we would get everything ready". He said there was an 'alert' "a couple of times" while he was at the base. The Applicant said he was also required to unload injured and dead soldiers from aircraft returning to the Ubon base. The Applicant said he suffered a bout of dengue fever while in Ubon. He said he was in hospital for a week, unconscious, and had been told "we nearly lost you". He said "a couple of days after that" he was medivaced to Butterworth and back to Australia because of "nerves". He also said he did not remember much about it. He said he was disappointed and upset that he was not allowed to stay at Ubon. On return to Australia the Applicant was in hospital for a few days and then worked at the hospital for three months while continuing to receive treatment as an outpatient. When asked how he felt when he left hospital he said "it was good, I was with my mates …". He was later deployed to do clerical work and work as a runner, and in 1968 he went to Darwin on an exercise.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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