Sandaver and Repatriation Commission - [2012] AATA 881

[2012] AATA 881

Division Veterans' Appeals Division

File Number

2011/3708

Re

JOHN SANDAVER

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Senior Member Dr K S Levy, RFD and
Dr G J Maynard, Brigadier (Rtd), Member

Date 14 December 2012

Place Brisbane
The decision under review is affirmed.
......................[Sgd]..................................................
Senior Member Dr K S Levy, RFD
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and entitlements – Compensation – War-caused injury or disease – Posttraumatic stress disorder – Statement of Principles – Hypothesis connecting injury to circumstance of service – Beyond reasonable doubt that the veteran’s condition was not war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A
CASES
Border v Repatriation Commission (2010) FCA 1430
Deledio v Repatriation Commission (1998) 83 FCR 82
Mines v Repatriation Commission (2004) 86 ALD 62
O’Neill v Repatriation Commission (2001) FCA 1492
Trigge and Repatriation Commission [2012] AATA 176
Woodward v Repatriation Commission (2003) 131 FCR 473
SECONDARY MATERIALS
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 5 of 2008
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD and
Dr G J Maynard, Brigadier (Rtd), Member
INTRODUCTION

John Sandaver served with the Royal Australian Navy from 29 May 1964 until 2 February 1966. He has some medical disabilities which have been recognised but certain psychiatric disabilities which have been rejected. He has made a number of claims for recognition of alcohol dependence/abuse, anxiety disorder, depressive disorder and posttraumatic stress disorder. These applications have all been unsuccessful, including a previous appeal to this Tribunal on 26 March 2003. A further application was made to the Repatriation Commission which was refused on 8 August 2008. An appeal against that decision was subsequently heard by the Veterans’ Review Board but the decision was affirmed on 22 July 2011. Mr Sandaver has now applied to this Tribunal for a review of the Repatriation Commission decision of 8 August 2008 (see application dated 31 August 2011). Since lodgement, the application has been narrowed to appeal only in respect of posttraumatic stress disorder.
ISSUES
The question for the Tribunal is whether the applicant suffers from posttraumatic stress disorder; and if so, whether that condition is “war caused” in terms of Statement of Principle No. 5 of 2008 (“the SOP”).
EVIDENCE
The applicant was born on 21 March 1947 and is now 65 years of age. His service with the Royal Australian Navy (RAN) was a period of less than two years when he was aged 17 to 19 years. Relevant to this application is the period which he served on HMAS Yarra in 1965. It is not in dispute that he had three periods which are recognised as “operational service” when HMAS Yarra served within the waters of Malaysia, Singapore and Brunei. Mr Sandaver was discharged on 2 February 1966 on the grounds, according to his evidence, that his services were no longer required. He described excessive alcohol and behavioural problems being the reasons for his departure from…

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.

Continue reading Sandaver and Repatriation Commission

Details

AGLC: Sandaver and Repatriation Commission [2012] AATA 881
Case: [2012] AATA 881
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the matter of Sandaver and the Repatriation Commission, the central issue was whether Mr Sandaver's Posttraumatic Stress Disorder (PTSD) was caused by his military service, thereby qualifying him for a pension under the Veterans' Entitlements Act 1986 (Cth). The case reached the court after the Administrative Appeals Tribunal (AAT) upheld the Commission's decision to deny Mr Sandaver's claim for a war-caused PTSD pension. The AAT found that despite Mr Sandaver's assertions and varying accounts of traumatic events during his service, the evidence did not sufficiently establish a connection between his PTSD and his military service. The court was tasked with reviewing the AAT's decision, focusing on whether the AAT had applied the correct legal standards in assessing the claim.

The primary legal issue was whether the Tribunal was correct in concluding that Mr Sandaver's PTSD was not attributable to his service, based on the requirement under section 120(1) of the Veterans' Entitlements Act 1986 (Cth) that the disease must be war-caused unless it is established beyond reasonable doubt that there is no sufficient ground for such a determination. The court also had to consider whether the Tribunal appropriately assessed the reliability of the evidence and whether a reasonable hypothesis connecting Mr Sandaver's condition to his service could be formed.

The court found that the Tribunal had correctly applied the legal principles in making its decision. It held that the varying accounts provided by Mr Sandaver to different psychiatrists, along with inconsistencies in his statements about the onset of his drinking and drug use, undermined the reliability of his evidence. Despite acknowledging that Mr Sandaver might have PTSD, the court upheld the Tribunal's conclusion that the evidence did not establish a sufficient connection between his condition and his military service. Consequently, the court affirmed the decision of the AAT, denying Mr Sandaver's claim for a war-caused PTSD pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

After leaving the Navy, Mr Sandaver said he has had difficulty in some employment roles and, for a period, drank excessively. He ceased drinking in 1979. However, he has had some difficulties at work as well as in his marriages over a substantial part of the period since leaving the RAN. Medical Evidence After leaving the Navy in 1966, Mr Sandaver first sought assistance of a psychiatrist in 1991. Since that time, a number of psychiatrists have tendered reports about the applicant’s psychiatric state and these show diverse findings, based to some degree, on the applicant’s different accounts of the origin of his present condition. He initially claimed that “chasing gun boats” was the main cause of his condition although he has subsequently admitted that this incident did not occur. Secondly, he has relied upon being a member of a boarding party on small fishing craft and having to man a machine gun as being the main traumatic event; and subsequently he relies upon the “Singapore incident”, where there was a suspicion of enemy divers and, as a result, the ship’s senior officers ordering grenades and scare charges be thrown overboard to deter any underwater divers. In 1991, Mr Sandaver first saw Dr Malcolm Foxcroft, psychiatrist, when he had marital problems and his “life was in a mess”. The report of Dr Foxcroft shows Mr Sandaver made no reference to his service experiences at that time.[1][1] Exhibit 13. The applicant subsequently made a claim for recognition of Anxiety Disorder, Depressive Disorder and Posttraumatic Stress Disorder. He consulted with Dr John Brown, psychiatrist, who saw and treated Mr Sandaver from 2000 until 2005 or 2006. Dr Brown produced three reports[2] on 12 June 2000, 23 August 2000 and 15 December 2000 and it is apparent that the applicant was concerned about the intercepting of small fishing craft and having to man a machine gun as being part of his duties. Mr Sandaver was also worried that he may have had to fire in defence and that he and other Australian seaman could have been injured or killed. In an earlier hearing, Dr Brown provided evidence that he had not noted the Singapore incident in his clinical notes and said that the applicant may have raised the matter although he did not recall it and he did not have it recorded in his notes. However, he gave a subsequent report stating that if the Singapore incident did occur it certainly could have been significant in the development of PTSD for the applicant. Shortly after, at a hearing dated 23 January 2001, the applicant was relying upon the boarding party incidents as being responsible for the development of his condition of PTSD.[3][2] Exhibit 12.[3] Exhibit 9. Next in sequence was a report provided by Dr Peter Mulholland, dated 4 October 2001.[4] Again, at that time, Mr Sandaver maintained that he had undertaken boarding party duties where he stopped sampans and fishing boats and was required to man a machine gun. During that consultation, he did make reference to Singapore divers but he qualified the significance of the Singapore incident to Dr Mulholland as being that it “did not impact upon him very much”.[5] [4] Exhibit 14.[5] Exhibit 14, para 15.9.

Decision

Reasons for decision

The differing conclusions reached by the doctors can be accounted for, in part, by the different scenarios described by the applicant to them. He also gave other inconsistent evidence, for example the fact that he told the tribunal that he only started drinking after the Singapore incident but told Dr Danesi and Dr Shaikh that he commenced drinking before the Singapore incident. In addition, Mr Sandaver gave the impression to a number of doctors that he had not used illicit drugs since the 1960’s but this conflicts with the positive result obtained from the tests conducted by Dr Mulholland. We are satisfied beyond reasonable doubt, despite Mr Sandaver’s account establishing a reasonable hypothesis, that there is no sufficient ground for making a determination upholding that hypothesis. Shortly put, we are satisfied that the unreliability of the evidence points to the applicant’s conditions not being attributable to his service life. For similar reasons, we are also satisfied that we would not find differently under the former SOP.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

A question from the bench was put by Dr Maynard about the applicant’s exposure to alcohol at his father’s hotel. He denied ever drinking there. Dr Maynard also asked him whether he was drinking alcohol before the scare charges incident, to which Mr Sandaver replied he only commenced drinking after the incident in Singapore.CONSIDERATION If the applicant’s PTSD is a “war caused” disease (see s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)) and he has incapacity as a result, he would be entitled to a pension as compensation (see s 13 of the Act and definition of “incapacity” in s5D of the Act). In assessing whether a condition is “war caused” for the purposes of s 9, the Tribunal must, in considering a claim based on operational service, determine that the disease is war caused “unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). In making a determination under s 120(1), the Tribunal will be satisfied beyond reasonable doubt there are no sufficient grounds for determining the injury or disease is related to service if, after considering the whole of the material, it is of the opinion that the material does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of a person’s defence service (s 120(3)). For all claims made after 1 June 1994, the assessment above requires a hypothesis to be regarded as reasonable only if an SOP has been issued by the Repatriation Medical Authority for the particular condition or disease (s 120A(3)). The relevant SOP here is Instrument No. 5 of 2008 – Posttraumatic Stress Disorder. Mr Sandaver also has a retained right under Instrument No. 3 of 1999 as amended by No. 54 of 1999 to have his claim considered under those former SOPs if he is unsuccessful under SOP No. 5 of 2008. The Incident The Tribunal must be reasonably satisfied that the incident which is the basis of the claim actually occurred (Mines v Repatriation Commission (2004) 86 ALD 62 at [48] per Gray J). In that respect, there is a report of HMAS Yarra for June 1965 (dated 4 July 1965). The Tribunal accepts the report of HMAS Yarra, documented shortly after the incident, that there was some activity corroborates the basis of the claim upon which Mr Sandaver relies. The Diagnosis In considering the SOP, there is a matter of diagnosis to be determined. The SOP sets out the minimum factors which must exist and, further, the factors must be related to service which will form part of the assessment as required by s 196B(2)(d) and (e) of the Act. The factors which point to a diagnosis of PTSD are set out in para 3(b) of the SOP. There are the reports of Dr Anderson in 2006 and Dr Danesi in 2012 which support a diagnosis of PTSD. The reports of Dr Foxcroft, Dr Mulholland and Dr Shaikh state that the applicant does not satisfy all the criteria required to justify a diagnosis of PTSD. There are two psychiatrists who accept that on the basis of the applicant’s accounts he has PTSD. The accounts by the applicant to each psychiatrist differ in some important respects and three psychiatrists deny that he has PTSD. We are equivocal as to whether he does have PTSD based on the accounts of symptoms he has presented at various times and after considering the differing opinions of all the psychiatrists. While in our final analysis of experts we have preferred the opinion of Dr Mulholland, in the interests of giving Mr Sandaver the benefit of the doubt (in the light of the fact that the psychiatrists did not have a consistent view), we are prepared to find that Mr Sandaver does have PTSD. The Hypothesis

Division	Veterans' Appeals Division
File Number	2011/3708
Re	JOHN SANDAVER
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Senior Member Dr K S Levy, RFD and Dr G J Maynard, Brigadier (Rtd), Member
Date	14 December 2012
Place	Brisbane