Skewes and Repatriation Commission
[2005] AATA 1026
•17 October 2005
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 - MemberDate 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 which follow.
ISSUE BEFORE THE TRIBUNAL
5. The issue before the Tribunal was whether Mr Skewes’ condition of alcohol dependence was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.
6. Mr Winship told the Tribunal that Mr Skewes would not be pursuing his claim for impotence. The Tribunal has accordingly affirmed the decision of the Respondent in that regard without exploring the matter further.
7. There was no disagreement, and the Tribunal accepted that should Mr Skewes be successful in his claim, the date of effect would be 30 January 2004.
LEGISLATIVE FRAMEWORK
8. The relevant legislation is the Veterans’ Entitlements Act1986, in particular sections 9, 13(1), 120(1), 120(3) and 120A. Mr Skewes served both on operational and eligible service, however only the former concerns us in this application.
9. Section 9 provides that an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service.
10. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
11. As Mr Skewes performed operational service from 4 – 8 November 1971, the standard of proof applicable to assess whether his alcohol dependence is war-caused, is that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act.
12. Section 120A of the Act also applies because Mr Skewes’ application was lodged after 1 June 1994. Therefore, the Repatriation Medical Authority (“RMA”), Statements of Principles (“SoPs”) produced pursuant to section 196B of the Act apply. There was no disagreement between the parties, and we accepted that Instrument No.76 of 1998 was the appropriate SoP to be applied in Mr Skewes’ case with regard to his alcohol dependence.
CONCLUSIONS
13. As Mr Skewes had served on operational service during a trip from Singapore to Vung Tau Harbour on HMAS Derwent accompanying HMAS Sydney from 4 – 8 November 1971, it was appropriate in considering whether his claimed conditions of alcohol dependence and hypertension were war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Respondent conceded that if alcohol dependence was found to be war-caused, hypertension would be accepted without further argument.
14. It was not in dispute, and we accepted that Mr Skewes suffers alcohol dependence, although the date of onset remained to be determined. In that regard we had before us the records of Dr A Lageman, Departmental Medical Officer at T4, which indicated that Mr Skewes was first diagnosed with hypertension in 1972. Dr Lageman considered the hypertension to be related to constitutional factors, with a possible contribution by alcohol consumption, and psychological factors. Dr Lewin recorded in his report (Exhibit R1), that Mr Skewes was first considered to be “seriously dependent” on alcohol in 1975. We were satisfied from the records that the clinical onset of alcohol dependence was in the early 1970s, and that provided Mr Skewes’ experience with the dead bodies floating by could satisfy the test of having experienced a “severe stressor” in factor 5(b) or 5(d) of the SoP, he would meet the test of having experienced it within the two years immediately before the clinical onset or worsening of alcohol dependence.
consideration of principles in repatriation commission v deledio(1998) 83 FCR 82
15. We were bound to apply the law as enunciated by the Full Federal Court in Repatriation Commission v Deledio (“Deledio”) (supra) which held that:
“… the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
16. With respect to determining when an hypothesis is reasonable, we noted Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):
“…
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”
17. We turned then to decide whether, applying the principles set out in Deledio (supra), the material before us raised an hypothesis connecting Mr Skewes’ condition of alcohol dependence with his war service.
18. There was no disagreement between the parties, and we accepted that Instrument No.76 of 1998 was the correct SoP to be applied in Mr Skewes’ case. We were satisfied from the records, as stated above, that the clinical onset of alcohol dependence was in the early 1970s.
19. In applying the first step of Deledio (supra), and considering whether an hypothesis could be raised linking Mr Skewes’ condition of alcohol dependence with his war service, we considered all the material before us, including the oral evidence and medical reports. We were mindful that no fact finding arises at this stage.
20. The material before us which raises the hypothesis connecting Mr Skewes’ alcohol dependence to his war service, was as follows:
· Mr Skewes’ evidence that he did not drink at all at home because his father was very strict about that;
· That from the early days of joining the Navy on 23 November 1968, he embraced the culture of the Navy which was to drink the alcohol on issue, and drink on shore leave;
· That Mr Skewes gradually started drinking more, and buying the cans on issue of those who did not drink;
· Mr Skewes’ evidence that he drank to calm his nerves and allay anxiousness, particularly on his way to Singapore after operational service in Vung Tau Harbour;
· Mr Skewes’ evidence that he drank more after his experiences of seeing dead bodies floating by while in a cutter in Vung Tau Harbour;
· Dr Dinnen’s view that the history of Mr Skewes’ alcohol dependence extends back some 30 years
· Dr Lewin’s view that it was not possible to obtain an accurate history of Mr Skewes’ alcohol consumption, but that he recognised alcohol dependence, and noted the diagnosis had been made by 1975.
21. We moved then to apply the appropriate Instrument No.76 of 1998, to decide whether the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Mr Skewes’ alcohol dependence with his war service. The relevant factors here are 5(b) or 5(d). Factor 5(b) states that “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or…” and Factor 5(d), “experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence …”
22. In Instrument No 76 of 1998, “experiencing a severe stressor” is defined as follows:
“experiencing a severe stressor” means, the person experienced,
witnessed or was confronted with, an event or events that involved actual
or threat of death or serious injury, or a threat to the person’s or other
people’s physical integrity, which event or events might evoke intense
fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlements Act applies, events that qualify as severe stressors
include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;”
23. If Mr Skewes meets the tests in Instrument No.76 of 1998, then a reasonable hypothesis can be raised linking his condition of alcohol dependence to his war service. Accordingly, we have considered all the evidence, case law and submissions with regard to Mr Skewes “experiencing a stressor” within the terms of the SoP.
24. We therefore considered the evidence regarding the events in Vung Tau Harbour surrounding Mr Skewes’ time on HMAS Derwent. He described the atmosphere in Vung Tau Harbour in November 1971, with military aircraft and helicopters flying overhead, all part of Operation Awkward. The Veteran’s evidence was that whilst on watch on the ship, he was issued with a rifle but no ammunition. The eight or so sentries on at any one time were instructed to look for air bubbles which could indicate divers with mines were in the area, and to observe the water to make sure nothing was floating towards the ship. If so, they would have to report it to the officer on the bridge, because there could be mines being attached under the ship. Mr Skewes said that nothing like that occurred while he as on watch, but that it was always a reality. He said that he was “a bit scared” at the thought that he was in an actual war.
25. Mr Skewes also described how on one occasion he was in a cutter in the company of three colleagues letting off scare charges, which did not worry him particularly, when he witnessed two bloated bodies (described to the VRB as four bodies), floating by. Mr Skewes said that he was aware these bodies could be dangerous because he had been told by his superiors that they could be booby trapped, and might explode, so he was “a bit scared”. When asked what he thought when he saw the bloated bodies, Mr Skewes answered: “Revulsion at first that things like this could happen. I was a bit scared that maybe this is the real thing…”. He said that he did not know if he could have shot at them if instructed. Mr Skewes could not recall whether the incident had been reported, but said that he spoke to the others in the mess about it when they returned to the ship. He said that it was “pretty grotesque” and “we were a bit worried …”
26. Dr Dinnen reported that Mr Skewes told him he had been in the cutter twice, and that he was “a bit worried”. Dr Dinnen also stated: “The patient’s view of the relevance of his service (the one trip to Vietnam) to his alcohol dependence may be influenced by the requirements to satisfy his claim. I am nonetheless of the view that it is not an unreasonable hypothesis that that particular trip did consist of ‘experiencing a severe stressor’ …. He was on a ship of war in a war zone … it is not unreasonable to view that as being an extraordinary experience compared to the sorts of experiences which occur in every day life.”
27. Dr Dinnen also reported that Mr Skewes had told him that on the way to Vietnam they were made aware that HMAS Hobart had been bombed.
28. Dr Lewin reported that Mr Skewes said when asked how he felt about seeing the bodies that he did not remember how he felt but said: “I was a bit scared, I suppose.” Those comments led Dr Lewin to opine: “… I do not believe that the experience described with regard to possible dead bodies in the water would have given rise to any psychiatric condition. It is my opinion that the experience did not represent a significant or a severe stressor.”
29. We have noted the above. It is not for the medical practitioners to apply the Statements of Principles. Nonetheless, their medical evidence is of assistance to the Tribunal.
30. We noted Mr Skewes’ reactions to the dead bodies he described, at a distance of approximately 20 metres when he gave evidence to the Tribunal, and at a distance of five feet when he was before the VRB. We noted that he described being “a bit scared” and “a bit worried”. We also considered the meaning of the word “revulsion” as used by Mr Skewes, and consulted the Oxford Dictionary which, among other things, came up with the following:
“4. A sudden violent change of feeling; a strong reaction in sentiment or taste.
1816 SCOTT Old Mort. xxxiv, The transition from the verge of the grave to a prospect of life had occasioned a dizzy revulsion in his whole system. 1853 KINGSLEY Misc. (1860) I. 289 There comes a natural revulsion from the baldness and puerility into which Wordsworth too often fell. 1867 FREEMAN Hist. Ess. (1871) Ser. I. iii. 55 The cause of this strange..direction of popular feeling is to be found in a sort of generous revulsion of sentiment.”
31. The Macquarie Dictionary defined “revulsion” as “1. a sudden and violent change of feeling or reaction in sentiment. 2. a violent dislike or aversion for something …”
32. We were mindful of Mr Winship’s submissions regarding the revulsion Mr Skewes expressed upon being confronted with the dead bodies floating in the water. Mr Winship referred to the definition of severe stressor in the SOP, submitting that in seeing the dead bodies, whether they were those of humans or of animals, Mr Skewes had witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to his or other people’s physical integrity. Mr Winship conceded that being “a bit scared” would not satisfy the test in the SoP, but submitted that Mr Skewes had expressed “revulsion” at seeing the bodies, and that therefore meant he had been exposed to a severe stressor in satisfaction of the definition in the SoP. He had, Mr Winship submitted, in seeing the dead bodies, witnessed casualties of war.
33. We were mindful of the several times that Mr Skewes described to the Tribunal and to Drs Dinnen and Lewin, being “a bit scared” and “a bit worried” on seeing the bodies floating past. We applied the Federal Court’s decision in Stoddart v Repatriation Commission [2003] FCA 334 which considered the correct approach to the question. Mansfield J said (at paragraph 55):
“the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”
34. It is clear that the judgment adds a subjective element to the assessment of whether the hypothesis raised by the material fits the template of the Statement of Principles. The test is in two parts:
· would a reasonable person in the position and with the knowledge of the applicant objectively perceive the event relied upon as a threat of death or serious injury or to physical integrity of self or other;
· did the threat convey that perception to the Applicant – in the sense that he subjectively experienced that threat.
35. We noted also from ReBenjamin and Repatriation Commission (2000) 61 ALD 565, the statements of Senior Member Kiosoglous which were referred to by the Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 34 AAR 270. Senior Member Kiosoglous stated as follows at paragraphs 42 and 43 of Re Benjamin and Repatriation Commission [2000] AATA 680:
“42. To generate a response of "intense fear, helplessness or horror" the "traumatic event" needs to be significant. It cannot just be a general apprehension or foreboding. The applicant gave evidence to the Tribunal about the mine incident and that in which he saw gunfire and bombing, most likely during the Tet Offensive. The Tribunal has also considered the manner in which he has described these events over the years to the various doctors. It also takes into account his drinking history, as that effects his abilities as a historian. Nevertheless, the Tribunal must be mindful of the reports of the historians, Professor Grey and Mr O'Keefe, as to the objective risks, and consider the relative severity of the applicant's experiences as against other veterans it sees, and common sense approaches as to what is considered to be "traumatic". The Macquarie Dictionary 3rd Edition defines trauma as being:
"...
1. Pathology a. a bodily injury produced by violence, or any thermal, chemical, etc., extrinsic agent. b. the condition produced by this; traumatism. C. the injurious agent or mechanism itself. 2. Psychology a startling experience which has a lasting effect on mental life; a shock. ..."
43. The traumatic event must be of sufficient magnitude so as to result in the experience of the factors listed in sub-paragraphs (b) through to (f) of SoP No. 15 of 1994. The Tribunal considers that to generate reactions of the magnitude prescribed in the said sub-paragraphs, the traumatic event must be of some particular significance. It will not be sufficient to simply relate to some generalised anxiety within the context of a war zone.”
36. When considering whether the hypothesis is reasonable, the test is the “reasonableness” test approved in Byrnes v RepatriationCommission (supra), and approved in Repatriation Commission v Deledio (supra). We considered the definition of “severe stressor” and whether Mr Skewes experienced, witnessed or was confronted with actual or threatened death or serious injury, or that they were a threat to Mr Skewes or other people’s physical integrity. We decided his experience in Vung Tau harbour seeing the bodies floating past, and his reaction to those qualified for the tests in the relevant SoP, and that therefore the hypothesis connecting his alcohol dependence with his war service is reasonable (section 120(3) of the Act).
37. We then moved to step four of the Deledio test and applied section 120(1) of the Act. We were mindful of Mr Skewes’ evidence that he did not drink at home because his father was very strict about alcohol. However we were satisfied that he commenced drinking early in his Navy career, noting in particular
· his first leave (in Melbourne) from the Navy;
· a drunken episode at Albury while on the bus on the way to his first posting at the Navy base in Nowra;
· a pub brawl in Sydney on 13 May 1971; and
· getting drunk while at Nowra from time to time.
38. Mr Skewes gave evidence regarding the culture of the Navy in regard to drinking, and the fact that he drank, and drank to excess sometimes at the junior sailors’ mess while he was still underage. Mr Skewes described going to the pub with his mates two to three times a week after joining HMAS Melbourne which was stationed at Cockatoo Island. Later, still on Melbourne, when she was at sea, Mr Skewes was also drinking daily, having the two issued 700 ml cans of beer. On HMAS Derwent he commenced obtaining beer from those who did not drink, and he gave evidence that on shore leave he would drink, and get drunk. He also drank as a result of marital and family problems.
39. We were satisfied that Mr Skewes was drinking to excess long before he went to Vietnam.
40. The Navy doctors who examined Mr Skewes recorded his drinking and the violent behaviour which accompanied it, (Dr Gill in T3/18; Dr Gill on 4 November 1975 “He is seriously dependent on alcohol and finds that it eases the burden of frustrations at home and at work.” (T3/19); raised blood pressure noted on T3/21; Pyrmont hotel drunken episode with violence 12 May 1971 (T3/23); Dr McGeorge “…I have no hesitation in recommending his discharge as unlikely to be an efficient member because of immature personality.” (T3/25).
41. We noted Mr Skewes’ evidence that in Singapore he drank to excess with the rest of his colleagues when they went ashore, that he got drunk with Father Ryan, and noted his evidence that after his operational service in Vietnam, he drank more and more. We were not satisfied that this was not the regular progress of an alcohol dependent person. Mr Skewes was treated for hypertension in the early 1970s indicating that he was alcohol dependent by then, and that the hypertension was likely to have arisen from his drinking.
42. We were satisfied from Dr Lewin’s evidence that there was no clinical worsening of Mr Skewes’ drinking after the operational service and no catastrophic decompensation, but that his drinking was a natural progression arising out of his vulnerable personality.
43. We were concerned about the veracity of the evidence Mr Skewes gave. He admitted lying to his doctors about the level of his drinking and smoking, saying that he had feared dismissal if he disclosed the true amount.
44. The evidence of Dr Dinnen was incomplete because Mr Skewes had not disclosed the episodes of drunkenness to him.
45. The evidence Mr Skewes gave regarding apprehension because HMAS Hobart had been bombed was not credible because that event took place in mid- June 1968, years before Mr Skewes spent his one day in Vung Tau harbour.
46. The description of the bodies in the water turned from four at a distance of five feet as told to the VRB, to two bodies at a distance of some 20 metres to this Tribunal. Mr Skewes told us his reaction was to be “a bit scared”. In effect we were satisfied that Mr Skewes’ evidence was at best unreliable. But what is significant is that the evidence did not indicate that the event caused, contributed or aggravated Mr Skewes’ alcohol dependence which was well established by that time.
47. We were mindful that Mr Skewes was promoted while he was in the Navy and appeared to be able to carry out his word adequately, and that he currently works as a bus driver.
48. From the evidence before us, we were satisfied beyond reasonable doubt that Mr Skewes was abusing alcohol long before his operational service, and that his alcohol dependence cannot be found to have been war-caused. Therefore, as a result, the application must fail, and the reviewable decision be affirmed.
49. We were also mindful of the submissions made by the Respondent that if Mr Skewes satisfied the SoP for alcohol dependence, he would satisfy that for hypertension. Because he could not satisfy the tests in the SoP alcohol dependence, his claim that his hypertension is war-caused must also fail.
DECISION
50. The Tribunal affirms the decision under review.
I certify that the preceding 50 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr J Campbell, Member.
Signed: .....................................................................................
Associate
Dates of Hearing 30 June & 26 September 2005
Date of Decision 17 October 2005
Applicant’s Solicitor Mr B Winship
Respondent’s Advocate Mr G Doube
APPENDIX
51. Section 9 provides that:
“War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…”
52. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. As relevant, section 13(1) of the Act follows.
“13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.”
53. As Mr Skewes had performed operational service, as defined in section 6 of the Act, from 4 – 8 November 1971, the standard of proof applicable to assess whether his conditions of alcohol dependence and hypertension were war-caused, was that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act:
“Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
…”
54. Section 120A of the Act also applied because Mr Skewes’ application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority (“RMA”), Statements of Principles (“SoPs”) produced pursuant to section 196B of the Act applied.
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.”
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