Skewes and Repatriation Commission - [2005] AATA 1026

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1026
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/958

VETERANS' APPEALS DIVISION )

Re DENNIS PAUL SKEWES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member
Dr J Campbell - Member
Date 17 October 2005
PlaceSydney

Decision
The Tribunal affirms the decision under review.

Ms G Ettinger
Senior Member

catchwords
Veteran - operational service – diagnosis of alcohol dependence agreed between the parties - exploding of scare charges not an issue – veteran claims he saw dead bodies when he was in the cutter – he felt “revulsion” and was “a bit scared” - stressor in SoP met – Tribunal convinced beyond reasonable doubt that alcohol dependence not war-caused - decision under review affirmed.
legislation
Veterans’ Entitlements Act 1986 ss 9, 13(1), 120A, 120(1), 120(3)
Repatriation Medical Authority Statement of Principles Instrument No.76 of 1998 Concerning Psychoactive Substance Abuse or Dependence and Determination of Statement of Principles concerning Alcohol Dependence or Alcohol Abuse
case law
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
ReBenjamin and Repatriation Commission (2000) 61 ALD 565
Benjamin v Repatriation Commission (2001) 34 AAR 270.
REASONS FOR DECISION

17 October 2005
Ms G Ettinger - Senior Member

  Dr J Campbell - Member

1.       Mr Dennis Skewes is a Veteran who served Australia in the Navy for twenty years, from 1968 to 1988. In November 1971, he spent four days on operational service which included the time his ship, HMAS Derwent, took to travel from Singapore to Vung Tau Harbour, and back. HMAS Derwent’s role was to accompany HMAS Sydney while it loaded and unloaded passengers and cargo.
2.       Mr Skewes was on sentry duty on deck with others, carrying a rifle, but no ammunition. Their job was to watch and see if bubbles appeared in the water, or other disturbances which might indicate enemy divers were planting mines, and to inform the bridge if that should occur. Mr Skewes told us that no such incident occurred while he was on watch.
3.       However, on at least one occasion during his time in Vung Tau, Mr Skewes was in a cutter, a small boat with three colleagues, letting off scare charges, (which did not worry him excessively, he said), when he saw bloated dead bodies floating by. The latter did worry him, although apparently not excessively, because he said he was “a bit scared”. We noted that Mr Skewes also stated that he felt “revulsion” at witnessing the bodies floating by, that is the casualties of war. He claimed that he qualifies as having experienced a “severe stressor” in terms of the Statement of Principles relating to alcohol dependence.
4.       We had to apply the law taking into account the facts before us as also the relevant case law. Ultimately we affirmed the decisions of the Repatriation Commission and the VRB for the reasons stated in the paragraphs…

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 Skewes and Repatriation Commission

Details

AGLC: Skewes and Repatriation Commission [2005] AATA 1026
Case: [2005] AATA 1026
Decision Date: 17 October 2005

CaseChat Overview and Summary

The case of Skewes and the Repatriation Commission was heard in the Administrative Appeals Tribunal. The applicant, a veteran, sought compensation for a psychiatric condition allegedly caused by his operational service. The central dispute was whether the applicant's alcohol dependence was war-caused. Both parties agreed on the diagnosis of alcohol dependence but disagreed on its causation.

The primary legal issue was whether the applicant's alcohol dependence was caused by or arose out of his operational service. The Tribunal had to determine if the applicant's exposure to a stressor during his service met the criteria set out in the Schedule of Psychiatric Conditions (SoP). Specifically, the Tribunal had to consider whether the applicant's experience of seeing dead bodies during an incident with scare charges constituted a sufficient stressor. Furthermore, the Tribunal needed to decide if the applicant's alcohol dependence was genuinely war-caused, notwithstanding the agreed diagnosis.

The Tribunal examined the evidence and concluded that the applicant's experience of seeing dead bodies when he was in the cutter met the criteria of a stressor in the SoP. However, the Tribunal was convinced beyond reasonable doubt that the applicant's alcohol dependence was not war-caused, despite the agreed diagnosis. The Tribunal found that the applicant's alcohol dependence predated his service and was not triggered by the stressor. Therefore, the decision of the Repatriation Commission to refuse the applicant's claim was affirmed.

The Tribunal upheld the decision under review, rejecting the applicant's claim for compensation. The Tribunal's reasoning hinged on the lack of a causal link between the applicant's operational service and his alcohol dependence, despite the presence of a recognised stressor.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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