ROBERT SCOTT and REPATRIATION COMMISSION
[2012] AATA 225
•18 April 2012
[2012] AATA 225
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2019
Re
ROBERT SCOTT
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 18 April 2012 Place Melbourne Decision Summary: The Tribunal sets aside the decision under review and substitutes its decision that Mr Scott’s hypertension is war-caused within the meaning of the Veterans’ Entitlement Act 1986.
[sgd]..................................................................
Miss E A Shanahan, Member
Veterans’ Affairs – operational and eligible service – Naval service in Vietnamese waters 1967–1968 – shelling of HMAS Perth – resultant stress and anxiety – commencement of drinking alcohol after event – excessive alcohol intake thereafter – hypertension diagnosed in 2004 – Statement of Principles Number 11 of 2008 – decision set aside.
Legislation
Veterans’ Entitlement Act 1986
Administrative Appeals Tribunal Act 1975
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115Secondary Materials
Statement of Principles Number 35 of 2003
(as amended by Statement of Principles Number 11 of 2008)REASONS FOR DECISION
Miss E A Shanahan, Member
18 April 2012
Mr Scott receives a pension at 100 per cent of the general rate for war-caused disabilities unrelated to this application. He wants the Repatriation Commission to accept that his hypertension, diagnosed in 2004, is war-caused.
A delegate of the Department of Veterans’ Affairs (DVA) refused his claim on 30 September 2010. The Veterans’ Review Board (VRB) affirmed this decision on 13 April 2011. The VRB found that none of the factors set out in the relevant Statement of Principles (SoP) was satisfied. Mr Scott applied for review of the decision by the Administrative Appeals Tribunal on 23 May 2011. In the event that his application was successful, the only entitlement he sought was payment of the costs of the medical treatment of his hypertension.
Mr Scott was represented by Ms Anne McMahon of counsel, instructed by Williams Winter Solicitors. Mr Ken Rudge, a DVA advocate, appeared for the Repatriation Commission (the Commission). The Tribunal was provided with documents filed in accordance with s 37(1) of the Administrative Appeals Tribunal Act 1975 (T-documents). The parties tendered the following documents:
For the Applicant:
·the report of Professor Richard Harper dated 28 November 2011 – Exhibit A1;
·the Staff-in-Confidence Report – Exhibit A2;
·the Psychology-in-Confidence report regarding Mr Scott – Exhibit A3; and
·Mr Scott’s statement dated 16 May 2011 – Exhibit A4.
·A collection of photographs of the damage sustained by HMAS Perth, numbered 1-10
For the Respondent:
·T-documents – Exhibit R1;
·Mr Scott’s naval historical record – Exhibit R2;
·the transcript of the VRB hearing of 13 April 2011 – Exhibit R3.
THE HISTORY OF THE APPLICATION AND SUMMARY OF EVIDENCE
Mr Scott joined the Royal Australian Navy (the Navy) on 11 February 1967 at the age of 17. He did his training at HMAS Cerberus (Cerberus) and on HMAS Parramatta (the Parramatta) while it was in dry dock. Then he joined the crew of HMAS Perth (the Perth) on 3 July 1967 and sailed for Vietnamese waters in August, arriving on or about 2 September 1967. This was two days before his 18th birthday.
Prior to his enlistment Mr Scott did not smoke cigarettes or drink alcohol. During training and while in Vietnamese waters he was an Able Seaman and had no alcohol entitlement. The role of the Perth was to provide gunfire support to other ships in Vietnamese waters. The Perth fired shells at designated targets identified by spotter aeroplanes. Mr Scott was a gun loader.
Mr Scott served in the Navy from 11 February 1967 to 20 April 1977. His entire service was eligible service as defined in the Veterans’ Entitlement Act 1986 (the Act). Between 2 September 1967 and 10 April 1968 his service was operational service. From 21 April 1977 to 5 September 1988 Mr Scott served in the Royal Australian Air Force (the Air Force), this period being defence service as defined by s 69 of the Act
On 18 October 1967 the Perth came under enemy fire. Mr Scott had completed his 2.00 a.m.to 6.00 a.m. watch and was having breakfast at approximately 8.00 a.m. when action stations was called. He heard a loud noise and was told by the First Lieutenant that the ship was under fire. Mr Scott followed the First Lieutenant down the main passageway toward his action station when suddenly there was a huge bang and flash followed by lots of whitish smoke (Exhibit A4). The First Lieutenant sustained a shrapnel injury and seven other seaman were injured; with two requiring transfer to the USS Newport News or USS Oriskany for medical treatment.
Mr Scott retreated and joined another action station (Mount 51). The explosion was caused by a 3 inch shell fired from the shore, which passed through the edge of a turret, through the deck and exploded in an office/strongroom. The turret partially breached by the shell contained five 5 inch shells, each weighing 70 pounds. Had these exploded it would have caused immense damage to the Perth and its crew, as the ship’s powder room and shell room were adjacent to the turret. The Perth rapidly accelerated out of firing range. Mr Scott was later told it was estimated that three hundred rounds had been fired at the Perth in a period of eight minutes.
The Perth sailed to Subic Bay in the Philippines for repairs soon after being shelled. The crew remained on the ship and had occasional leave. Mr Scott said he would leave the ship for a meal and would have a few drinks with his meal. The Perth was in port for seven to ten days and then returned to Vietnamese waters. According to Mr Scott, the crew were shocked and quiet, having realised that the Perth was vulnerable. He said they had been told that as North Vietnam did not have a navy they were unlikely to be fired at.
During the following six months the Perth returned to the gun line for 15 to 30 day periods and was fired on four more times. Mr Scott’s drinking of alcohol continued, particularly when on shore leave in Hong Kong. He drank mainly beer and gin. He also commenced smoking. He believed that the alcohol had a positive effect in reducing his level of anxiety.
Following his return to Australia on 10 April 1968, Mr Scott had a period of six weeks when he was on weekend leave and returned to his hometown of Geelong. He spent much of his time rabbiting and drinking. He drank heavily at weekends and on at least two nights a week, drinking two to three 10 ounce (300 ml) pots of beer per hour. While in Geelong, in approximately 1969, Mr Scott got drunk and was in a fight. He was arrested and placed in a cell until bailed. At this time he was undertaking electrical training at Cerberus and drinking three to five pots per night on one to two nights per week and much more on weekends.
In 1969 Mr Scott was posted to the Parramatta and would drink one to two small cans per night, depending on where the Parramatta was located. During this posting, the Parramatta went to the assistance of HMAS Melbourne (the Melbourne) after its collision with the USS Frank E. Evans (the Evans). The Parramatta escorted the Melbourne to Subic Bay for repairs.
In November 1969 Mr Scott transferred to HMAS Swan, which was based at Williamstown. Here he was able to drink more and would imbibe two pots per hour for four to five hours. He was careful not to become overtly drunk or unable to walk normally.
For a two year period (from 11 January 1971 to 19 January 1973) Mr Scott was based on land, while attending Toorak Teachers’ College. He had married in August 1970. His drinking to excess continued and late in 1972 he was involved in a drunken brawl, in which he sustained a fractured zygoma.
From late 1973 to September 1975 Mr Scott taught naval recruits in Perth. While his alcohol intake remained at the same levels, he was actively engaged in competitive karate. When competing in major tournaments he would cease drinking alcohol for up to three weeks before an event. It was during this period that he was found to have an elevated blood pressure reading of 150 systolic on 100 diastolic. Appropriate investigations were undertaken and the results were normal. At a medical examination conducted on 6 September 1975 it was recorded that he did not smoke or drink. His blood pressure was subsequently checked on several occasions and found to be variable, or what is termed labile hypertension. Later recordings were normal. For example, in September 1984 his blood pressure was 120 systolic on 75 diastolic.
On completing his term with the Navy, Mr Scott commenced his service with the Air Force. In 1982 he was transferred to the Butterworth air force base in Penang, Malaysia. There he was an instructor and also had responsibility for the management of a 17-room hotel, which was in effect an officers’ club. During this period his alcohol intake escalated and he drank red wine and spirits as well as beer. He found he was suffering from hangovers and cut his beer intake to five beers in any one sitting. His superior officers’ reports during his time in the Air Force were all of a high standard. They referred to his activities managing the mess club and his and his wife’s participation in the social events that were part of the milieu at the base. On his return to Australia Mr Scott continued to work as an instructor and was promoted to the position of Acting Squadron Leader.
His service in the Air Force ceased in September 1988, when he became a teacher at the Riverina College in Wagga Wagga. He obtained a Master’s Degree in 1991 and set up a consultancy business in 1992. His consultancy mainly provides advice on management and human resources. He has worked for the Ok Tedi mine in Papua New Guinea, the New South Wales State Government, Mount Isa Mines and in England. He currently works according to demand and may have two to three weeks when he is extremely busy followed by periods when he is not retained on any project.
In 2003 his blood pressure was noted to be elevated and was monitored until 2004, when his hypertension became established and treatment was started. He continues to take the anti-hypertensive drug Coversyl. His blood pressure is apparently now well controlled. In 2004 he was advised to reduce his alcohol intake. He now drinks predominately white wine and will consume up to half to three quarters of a bottle per day. He drinks five days per week.
EVIDENCE BEFORE THE TRIBUNAL
Mr Scott was the only individual to give evidence at the hearing. His evidence has been included in the summary above. Mr Rudge and Ms McMahon questioned him extensively on conflicting evidence contained in the documents. Mr Scott denied having told the medical officer in 1975 that he was a non‑smoker and a non-drinker (see paragraph 15). He explained that he did not have an opportunity at the VRB to enlarge on his evidence regarding drinking from 1973 to 1975; and contrary to what was said in the VRB decision, he did not abstain from alcohol during those years but only for short periods when he was to participate in a competitive karate event.
MEDICAL EVIDENCE
Professor Richard Harper (Report Exhibit A1) dated the onset of Mr Scott’s hypertension as being in 2004, as did his treating general practitioner, Dr Arnold.
RELEVANT LEGISLATION
Section 9 of the Act provides:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...
The standard of proof applicable to operational service is set out in s 120(1) and 120(3):
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
The standard of proof applicable to eligible service is provided in s 120(4):
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B.
As Mr Scott’s claim was made after 1 June 1994, s 120A is attracted:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
The parties agreed that the relevant SoP is that concerning Hypertension, Instrument No 35 of 2003, as amended by No 11 of 2008. They also agreed that the relevant factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service (per Repatriation Commission v Deledio; see below) is Factor 5(b). This factor states: consuming an average of at least 300 grams of alcohol per week for a continuous period of at least six months before the clinical onset of hypertension.
The Tribunal is required to consider the reasonable hypothesis in accordance with the Full Court of the Federal Court’s decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as follows:
(I)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 rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(II)If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an sop determined by the authority under s 196b(2) or (11). If no such sop is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(III)If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the sop. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196b(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
(IV)The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. (97e-98a)
SUBMISSIONS
The parties’ representatives elected not to make formal submissions, agreeing that the matter should be decided on the facts presented. Mr Rudge, on behalf of the Commission, did however concede that Mr Scott’s alcohol intake in the six months preceding diagnosis of his hypertension reached the requirement of 300 grams of alcohol per week for a continuous period of more than six months. He did not concede that Mr Scott’s excessive alcohol intake was war-caused.
TRIBUNAL’S DELIBERATIONS
Mr Scott served in the Australian Army and Navy for 21 years between 1967 and 1988. All of this was eligible service. The period from 2 September 1967 to 10 April 1968 was operational service as defined in the Act. His claim that his hypertension is war-caused is based on the hypothesis that the attack on the Perth in waters off Vietnam on 18 October 1967 created a level of personal anxiety that led him to commence drinking alcohol to excess for decades thereafter. This excessive alcohol intake in turn contributed causally to the development of hypertension, which was diagnosed in 2004.
The Tribunal must first confirm or make its own diagnosis and determine the date of clinical onset of the condition. There is no doubt that Mr Scott’s hypertension became established in 2004 after a 12 to 18 month period of labile elevations of his blood pressure readings. There was also a short period of labile hypertension recorded in 1975. The Tribunal agrees that the onset of hypertension was in 2004.
As Mr Scott’s claim is based on an event that took place during his operational service, the standard of proof to be applied is that of s 120(1) and s 120(3) of the Act.
The Tribunal is required to test the reasonableness of the hypothesis in accordance with the steps laid down by the Full Court of the Federal Court in Deledio. The Tribunal has considered all of the material before it and finds that this material does point to a hypothesis connecting Mr Scott’s hypertension with his operational service. Step 1 of Deledio is satisfied.
There is an SoP determined by the Repatriation Medical Authority, in accordance with s 196B(2) of the Act, that is applicable to hypertension and the Tribunal agrees with the parties that the relevant SoP is Instrument No 35 of 2003, as amended by Instrument No 11 of 2008. The relevant factor relied on by Mr Scott is Factor 5(b): consuming an average of at least 300 grams of alcohol per week for a continuous period of at least six months before the clinical onset of hypertension. Step 2 of Deledio is satisfied.
Based on an examination of all the material before it, the Tribunal finds that the hypothesis fits the template and is thus a reasonable hypothesis. Step 3 of Deledio is satisfied. The Tribunal now moves to a consideration of the facts.
The Tribunal is not satisfied beyond reasonable doubt that Mr Scott’s incapacity in the form of hypertension was not war-caused. The parties have agreed that in the six months prior to Mr Scott’s diagnosis of hypertension he was consuming in the order of 50 standard drinks per week, which equates to more than 300 grams of alcohol per week. Prior to his enlistment in the Navy, Mr Scott did not drink. He did not drink in the early months of his service. He commenced drinking after the Perth was shelled while serving in the waters off Vietnam. This was apparently a traumatic experience, particularly for a young man aged 18. It is not surprising that after the incident he experienced an increased level of anxiety, which he dealt with by drinking alcohol; with his intake escalating over a short time and remaining at excessive levels for decades thereafter. Mr Scott reduced his alcohol intake following the diagnosis of hypertension but he is still consuming in the order of 200 grams per week. The only areas of conflict in the evidence before the Tribunal relate to an in-service record in 1975 stating that Mr Scott did not drink or smoke and the VRB’s interpretation of his drinking habits between 1973 and 1975. The Tribunal accepts that Mr Scott is a truthful witness and he has satisfactorily explained these apparent conflicts in the evidence.
There may be other factors, such as a positive family history which contributed to Mr Scott’s development of hypertension. However, the Full Court of the Federal Court in Repatriation Commission v Law (1980) 31 ALR 140 and the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115 make it clear that the claimed cause of the condition need not be the sole or dominant cause, in order to satisfy the phrase attributable to as it appears in the Act. As the Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that Mr Scott’s hypertension is war-caused, the Tribunal decides that Mr Scott’s hypertension is war-caused. The decision under review must be set aside and substituted with the Tribunal’s decision that Mr Scott’s hypertension is war-caused.
I certify that the preceding 34 (thirty four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.
[sgd]..............................................................
Clerk
Dated 18 April 2012
Date of hearing 9 March 2012 Counsel for the Applicant Ms A McMahon Solicitors for the Applicant Ms J Ransley, Williams Winter Counsel for the Respondent Mr K Rudge, Repatriation Commission
0
2
0