ROBERT SCOTT and REPATRIATION COMMISSION

Case [2012] AATA 225

[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 115

Secondary 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

  1. 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. 

  2. 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.

  3. 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

  4. 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

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ROBERT SCOTT and REPATRIATION COMMISSION [2012] AATA 225
Case
[2012] AATA 225
Decision Date

CaseChat Overview and Summary

The matter between Robert Scott and the Repatriation Commission involved a dispute over whether Mr Scott's hypertension was caused by his operational service in the Royal Australian Navy during the Vietnam War. The case was heard by the Administrative Appeals Tribunal. The primary issue before the tribunal was whether Mr Scott's hypertension was war-caused, specifically if the attack on HMAS Perth in October 1967 led to his excessive alcohol consumption, which subsequently contributed to the development of hypertension.

The tribunal had to determine if Mr Scott's excessive alcohol intake was a direct result of the traumatic experience during the attack on the Perth, and whether this intake met the criteria of 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, as required by the relevant Standard of Proof (SoP). The tribunal also needed to assess the credibility of Mr Scott's evidence and any conflicting information regarding his alcohol consumption during his service.

After considering the evidence presented, the tribunal found that Mr Scott's hypertension was reasonably connected to his operational service. It was determined that Mr Scott's excessive alcohol consumption, which began after the traumatic incident on the Perth, met the criteria set out in the SoP. The tribunal accepted Mr Scott's account of his drinking habits and the impact of the attack on his mental state, concluding that his hypertension was war-caused. The tribunal's decision was based on the reasonable hypothesis that the anxiety resulting from the attack led to excessive alcohol consumption, which in turn contributed to the development of hypertension.

The tribunal ordered that Mr Scott's claim for war-caused hypertension be accepted, and that appropriate compensation be provided in accordance with the Veterans' Entitlements Act 1986. The decision was made on the basis that the hypothesis linking the war service to the hypertension was reasonable and met the required standard of proof.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.