Robson and Repatriation Commission - [2001] AATA 133

DECISION AND REASONS FOR DECISION [2001] AATA 133

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1395

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Mr Douglas Robson
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date23 February 2001
PlaceSydney

Decision      The Tribunal decides to: 1. Affirm that part of the decision of the Repatriation Commission dated 26 September 1998, in relation to Chronic Solar Skin Damage, Sleep Apnoea and Hiatus Hernia; 2. Set Aside those parts of the decision under review in relation to Gastro-oesophageal Reflux Disease and Hypertension and in substitution therefor determines that the Applicant's conditions of Gastro-oesophageal Reflux Disease and Hypertension are war-caused pursuant to section 9 of the Veterans' Entitlement Act 1986. Disability Pension in respect of these conditions is payable with effect from and including 21 May 1998; 3.           The matter is remitted to the Repatriation Commission for assessment of the rate of Disability Pension payable to the Applicant.
  ...................[sngd]...................
  Ms SM Bullock, Senior Member
Catchwords
VETERANS' AFFAIRS - Entitlement - Operational Service - Reasonable Hypothesis - Gastro-oesophageal Reflux Disease - Hypertension - Sleep Apnoea - Chronic Solar Skin Damage - Hiatus Hernia

Legislation
Veterans' Entitlement Act 1986 ss 5D, 9, 13, 120(1), 120(3), 120A

Authorities
Repatriation Commission v Keeley [2000] FCA 532
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Ahrenfeld (1990) 101 ALR 71
McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application to the Administrative Appeals Tribunal ("the Tribunal") made by the Applicant, Mr Douglas Robson for review of a decision made by the Repatriation Commission ("the Commission") dated 26 September 1998 (T2) as affirmed by the Veterans' Review Board ("the Board") on 23 July 1999 (T15). The Commission refused to grant Disability Pension for the conditions of Gastro-oesophageal Reflux Disease, Chronic Solar Skin Damage, Hypertension and Sleep Apnoea.
A hearing was held before the Tribunal in Sydney on 6 November 2000. Mr Robson attended the hearing and provided oral evidence. Mr Robson was represented by Mr A Halstead of Counsel and the Respondent, the Repatriation Commission, was represented by Mr S Modder, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents, T1-T22") and the following exhibits:
Exhibit          Description Date
T1 –T22        T Documents Various
A1      Report of Dr FH Burns OAM, Consultant Physician, Specialist in Drug and Alcohol Dependency May 2000
A2      Statement of Mr D Robson concerning smoking history         22 August 2000
A3      Proceedings of HMAS CULGOA. 1953
R1      Report by Professor RP Mattick, Associate Professor, National Drug and Alcohol Research Centre of the University of New South Wales     28 July 2000

Issues

The issues to be determined in this matter are whether or not the conditions of Gastro-oesophageal Reflux Disease, Hiatus Hernia, Sleep Apnoea, Hypertension and Chronic Solar Skin Damage are war-caused.
At hearing, Mr Halstead, representing the Applicant, advised that there…

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.

Keep reading for free

Create a free CaseChat account to read Robson and Repatriation Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] AATA 133
Decision Date: 23 February 2001

CaseChat Overview and Summary

In the matter of Robson v Repatriation Commission, the Federal Court of Australia considered the entitlement of Mr Robson to certain benefits under the Repatriation Act. Mr Robson claimed that his service in the Royal Australian Navy during the Korean War led to various health conditions, including gastro-oesophageal reflux disease, hypertension, sleep apnoea, and chronic solar skin damage, which he sought to have recognised as operationally related. The court had to determine whether these conditions were connected to Mr Robson's military service and whether they met the statutory criteria for recognition as service-related disabilities.

The central legal issue was whether the conditions listed by Mr Robson were connected to his operational service in the Navy during the Korean War, and if so, whether they met the criteria for recognition under the Act. This involved assessing whether there was a reasonable hypothesis that the conditions arose from Mr Robson's service and if they were included in the relevant Statements of Principles. Given that there were no Statements of Principles in existence for hiatus hernia at the time of the decision, the court also had to consider the appropriate approach in such circumstances, as established in previous cases.

The court considered the evidence provided by Mr Robson and Dr Burns regarding the onset and progression of his health conditions, alongside the environment and circumstances of his service. Dr Burns' evidence highlighted the significant role the Navy environment played in establishing Mr Robson's harmful drinking habits, which in turn contributed to his physical health conditions. The court found that there was a reasonable hypothesis that Mr Robson's service in the Navy led to the development of his conditions. Consequently, the court held that the conditions were service-related and entitled Mr Robson to the benefits he sought.

The court ordered that Mr Robson's conditions be recognised as service-related, and he was entitled to the associated benefits under the Repatriation Act. This included acknowledging the impact of his service environment on the development of his health conditions and the absence of relevant Statements of Principles for hiatus hernia. The decision reinforced the importance of considering the specific circumstances of service and the natural progression of health conditions in determining service-related entitlements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In respect of the condition Hiatus Hernia, there were no Statements of Principles in existence for this condition at the time of the Repatriation Commission's decision. In such circumstances, the proper approach when applying subsections 120(1) and (3) of the Act was set down by the Federal Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.Background The following information is provided by way of background and the facts contained within are not in dispute. Mr Robson told the Tribunal that he joined the Royal Australian Navy just before his eighteenth birthday in 1951 and he had not smoked before joining the Navy. Mr Robson described himself at school as being a bright boy and in the Navy he helped all the "old retreads" to write letters and undertook general administrative work for them. Mr Robson told the Tribunal that he looked up to these men and followed their lead in some aspects of life in the Navy including smoking and the consumption of alcohol. On commencement of his service, Mr Robson served in HMAS FLINDERS and was issued with 30 pence, soap, a razor and tobacco products. Initially, Mr Robson's period in the Navy involved some training as a Radio/Radar Mechanic and he was then posted from HMAS FLINDERS to HMAS ARUNTA. In a written statement of 22 August 2000, Mr Robson wrote that one morning in January 1953, when he was 19 years old, he was unexpectedly taken off HMAS ARUNTA and posted to HMAS CULGOA. HMAS CULGOA was undergoing work-ups in order to engage in operations for the Korean War. During March 1953, HMAS CULGOA sailed for Korea to engage in operations against the enemy. Mr Robson described a number of incidents during his service in HMAS CULGOA. A few days before becoming engaged with the enemy, Mr Robson described a situation where on 14 April 1953, in Sasebo Harbour, Japan, the ship was birthed alongside HMS ATHABASKAN when an explosion occurred in the calorifier room which caused two crew to be injured. Mr Robson described that one crew member had his genitals severed as result of the explosion. In his statement, Mr Robson described that it was at about this time:"…it struck me that we were about to become involved in serious warfare operations and the sense of adventure I had previously felt disappeared – I became very frightened about everything going on around me." (Exhibit A2) Mr Robson noted that HMAS CULGOA was never fired upon during the period he was in Korean waters but nonetheless, he stated that he was young and extremely frightened by being in the combat zone. Mr Robson stated that he had received little training and did not really know what to expect. He was one of the youngest crew on board. There were bombardments every few days and action stations were exercised. This is evident by reference to the proceedings of HMAS CULGOA (Exhibit A3). During action stations, Mr Robson described being locked up for periods of time when there was bombardment on shore. The ship was often blacked-out and there was a constant reminder of the action because of the bombardment of the shore.

Evidence

Evidence Before The Court

In terms of Mr Robson's fitness levels, he told the Tribunal that in the Navy he was very fit playing sports such as tennis, rugby and martial arts. After the Navy, Mr Robson was involved in karate and other martial arts and swimming but ceased in about the 1970's. Mr Robson stated that he had a weight problem after he ceased smoking cigarettes and also this occurred when he was working at the brewery. Dr Burns reported in May 2000, that Mr Robson regularly goes to the gymnasium and uses the swimming pool. Dr Burns noted that Mr Robson started to gain weight after he ceased smoking in 1984 and also because of bursitis in his left shoulder, which occurred in the mid 1980's, this again contributed to Mr Robson's weight gain.Medical EvidenceDr FH Burns, Consultant Emeritus to the Drug and Alcohol Department, Royal Prince Alfred Hospital, Visiting Physician, Dependence Unit, Northside Clinic, Consultant Emeritus to the Drug and Alcohol Services, Concord Hospital. Following an examination of Mr Robson on 19 April 2000, Dr Burns reported in May 2000, that:"Mr Robson has a history of hazardous drinking since his service in Korea in 1953 progressing to harmful drinking in the late 1950s. It is now established as a regular pattern of harmful drinking, with some aspects of the alcohol dependence syndrome, though minimal physical dependence…. Mr Robson demonstrates tolerance, but not withdrawal, continued excessive consumption, unsuccessful attempts to cut down or controlled alcohol use, much time spent in activities related to drinking and social occupations related to drinking, and the alcohol use has continued despite a feeling of regret about the consequences of drinking.…Although Mr Robson said they never drank at sea, while on operational service in Korea there was the constant concern about explosion and disaster, and the risk of not surviving the war. They tended to seek release in heavy drinking when ashore.…Mr Robson would have satisfied the criteria for harmful drinking between 1957 and 1970, even though he drank less. The emergence of dependence was evident after 1970, but it would not be unexpected if Mr Robson had reported drinking more than 50 standard drinks a week on occasions when he was in the Navy. He continued his drinking even while he had young children, though he drank much less, and drank away from home. In those days he had the part-time job at the RSL which fulfilled this need.…The environment in the Navy was a significant contributing factor to the establishment of Mr Robson's drinking habit, and the subsequent development of dependence and the accumulation of alcohol-related disabilities has occurred as part of a natural history of harmful drinking. Massive exogenous obesity, insulin-dependent diabetes mellitus, gastric hypersecretion and reflux oesophagitus, and hypertension are the documented alcohol-related physical disabilities.…In the 1970's before the diagnosis of hypertension Mr Robson was drinking full strength schooners, each drink approximately two standard drinks, 5 to 7 schooners on most days would be a rough approximation. This would mean between 600 and 800 grams of alcohol a week. This is greatly in excess of the threshold for the development of both harm and dependence. ..." (Exhibit A1)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.