Rodney Bawden and Repatriation Commission - [2014] AATA 462

[2014] AATA 462

Division VETERANS' APPEALS DIVISION

File Number(s)

2009/3864

Re

Rodney Bawden

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance
G.D. Friedman, Senior Member

Date 9 July 2014

Place Melbourne
1. The decision of the Veterans’ Review Board made 20 May 2009 is set aside.

2. In substitution for the decision set aside it is decided that posttraumatic stress disorder and alcohol use disorder suffered by Mr Bawden are war-caused with effect from 12 January 2007.

............................[sgd]............................................
Deputy President J W Constance
CATCHWORDS
VETERANS' AFFAIRS – veterans’ entitlements – naval service in Vietnam – posttraumatic stress disorder – alcohol use disorder – whether war-caused – decision under review set aside

LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 9, 120(1)
CASES
Bawden and Repatriation Commission [2011] AATA 283

Bawden v Repatriation Commission [2012] FCA 345
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Hill [2002] FCAFC 192

SECONDARY MATERIALS
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000 (DSM-IV)

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Washington DC, American Psychiatric Association, 2013 (DSM-5)

REASONS FOR DECISION
Deputy President J W Constance
G.D. Friedman, Senior Member
9 July 2014

INTRODUCTION

Rodney Bawden served in the Royal Australian Navy (the navy) from
8 January 1964 to 7 January 1976. His service included nine voyages to Vietnam on HMAS Sydney between 1967 and 1969, and this constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
The respondent accepts that Mr Bawden’s medical conditions of bilateral sensorineural hearing loss and tinnitus are war-caused, and he receives a disability pension at 40 per cent of the general rate. The respondent rejected his claim that posttraumatic stress disorder (PTSD), alcohol dependence or abuse and depressive disorder are war-caused conditions. Mr Bawden’s claim was refused by the Veterans’ Review Board, and he sought review of the decision. On 2 May 2011 the Tribunal affirmed the decision (Bawden and Repatriation Commission [2011] AATA 283).
Mr Bawden appealed the Tribunal’s decision to the Federal Court of Australia and on 5 April 2012 Gray J set aside the decision and remitted the matter to the Tribunal to be heard and decided again (Bawden v Repatriation Commission [2012] FCA 345). The respondent appealed the decision of Gray J to the Full Federal Court and on 3 December 2012 the Full Court allowed the appeal and set aside the orders of the primary judge (Repatriation Commission v Bawden (2012) 206 FCR 296). The Full Court affirmed the part of the Tribunal’s decision that Mr Bawden does not suffer from PTSD as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000 (DSM-IV). The Full Court…

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.

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Details

Case: [2014] AATA 462
Decision Date: 9 July 2014

CaseChat Overview and Summary

Rodney Bawden brought a claim against the Repatriation Commission for war-caused posttraumatic stress disorder (PTSD) and alcohol use disorder (AUD) stemming from his naval service in Vietnam. The case was heard in the Administrative Appeals Tribunal. The central issue for the Tribunal was whether Bawden's PTSD and AUD were war-caused, as claimed, or if there was insufficient evidence to support such a finding. This involved examining the nature of the stressors Bawden experienced during his service, their timing in relation to the onset of his disorders, and whether these were adequately documented and corroborated.

The Tribunal accepted Bawden's account that he was an eyewitness to a traumatic event during his service, which met the criteria for a category 1B stressor. This finding was supported by statements from Dr White and Dr Been. The Tribunal concluded that this event occurred within the required timeframe before the onset of Bawden's AUD, satisfying the criteria under factor 6(c) of the 2009 Schedule of Pensions (SoP) and the fourth step of the Deledio test. Given these findings, the Tribunal was not convinced beyond reasonable doubt that Bawden's incapacity did not arise from a war-caused injury. Consequently, the Tribunal ruled that Bawden's PTSD and AUD were indeed war-caused.

The Tribunal set aside the previous decision of the Veterans' Review Board and substituted it with a decision that Bawden's PTSD and AUD were war-caused, effective from 12 January 2007. This ruling provided Bawden with the recognition and entitlements he sought based on his service-related trauma.

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

For reasons given in relation to whether PTSD suffered by Mr Bawden was war-caused, the Tribunal accepts his evidence, supported by accounts given to Dr White and Dr Been, that he was an eyewitness to the sampan event, and finds that this constitutes a category 1B stressor that was experienced by Mr Bawden within the five years before the clinical onset of alcohol dependence (now alcohol use disorder). Consequently Mr Bawden satisfies factor 6(c) of SoP No. 1 of 2009 and satisfies the fourth step of Deledio. The Tribunal is not satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. Therefore the Tribunal finds that Mr Bawden’s condition of alcohol use disorder is war-caused. DECISION The decision of the Veterans’ Review Board made 20 May 2009 will be set aside. In substitution for the decision set aside it will be decided that posttraumatic stress disorder and alcohol use disorder suffered by Mr Bawden are war-caused with effect from 12 January 2007.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2009/3864
Re	Rodney Bawden
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President J W Constance G.D. Friedman, Senior Member
Date	9 July 2014
Place	Melbourne