Slatyer and Repatriation Commission - [2001] AATA 144

DECISION AND REASONS FOR DECISION [2001] AATA 144

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/136

VETERANS' APPEALS DIVISION       )
           Re      COLIN WILLIAM SLATYER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date26 February 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution thereof determines that: (1) the Applicant's conditions of generalised anxiety disorder with associated major depression and alcohol dependence are war caused disabilities; and (2) the matter is remitted to the Respondent for assessment of the war caused disabilities.

[Sgd] Dr J D Campbell
Member
CATCHWORDS
Veterans' Entitlements – operational service – psychiatric illness – war caused
Veterans' Entitlement Act 1986, sections 6, 8, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v O'Brien (1985) 155 CLR 422

REASONS FOR DECISION

Dr J D Campbell, Member

Mr Colin Slatyer ("the Applicant") in this matter seeks a review of the decision of the Veterans' Review Board dated 8 December 1998 which rejected the Applicant's claim that his disability of generalised anxiety disorder with associated major depression and alcohol dependence was war caused. In so finding the Veterans' Review Board had amended the Applicant's diagnosis from one of post traumatic stress disorder with associated major depression and alcohol dependence to one of generalised anxiety disorder with associated major depression and alcohol dependence. In this regard, that is the change of diagnosis, the Veterans' Review Board had amended the earlier decision of the Repatriation Commission ("the Respondent") dated 1 April 1998.
A hearing was held before the Tribunal on 23 October 2000 at which the Applicant was represented by Mr Smith of Counsel. The Respondent was represented Mr Modder, an advocate from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.

The following documents were placed in evidence before the Tribunal:
Exhibit No  Description                  Date
T1-T18 PP1-102 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975
A1      Medical report of Dr Dinnen       28 May 1999
A2      Instrument issued under subsection 6D(1) of the Veterans' Entitlement Act 1986
A3      Statement of Mr Slatyer     19 July 1999
A4      Statement of Mr Slatyer together with two attachments, namely a copy of letters from Mr Slatyer while on HMAS ANZAC (incomplete) and a record of ship movements for HMAS ANZAC as annotated by Mr Slatyer     23 October 2000
A5      Applicant's statement of facts and contentions 16 July 1999
R1      Medical report of Dr Lewin 24 June 1999
R2      Medical report of Dr Lewin 29 November 1999

issues

The relevant issue in this matter is whether the Applicant's condition of generalised anxiety disorder with associated major depression and alcohol dependence is a war caused disability.
legislation
The relevant legislation in this matter is:
the Veterans' Entitlement Act 1986 ("the Act") and in particular subsections 6D(1), 8, 120(1), (3),(4), 120B, 196B;,
Statement of Principles No 48 of 1994 as amended by No 275…

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 Slatyer and Repatriation Commission

Details

AGLC: Slatyer and Repatriation Commission [2001] AATA 144
Case: [2001] AATA 144
Decision Date: 26 February 2001

CaseChat Overview and Summary

In the case of Slatyer and the Repatriation Commission, the Applicant, who served in the Navy between 1958 and 1965, sought a determination regarding the war-related nature of his psychiatric illness. The dispute was adjudicated by the Federal Court of Australia. The Applicant claimed that his psychiatric condition, which included major depression, anxiety, and alcohol dependence, was caused by his service, particularly by the receipt of a letter from his fiancée breaking off their relationship while he was at sea, and a subsequent diving fatality incident. The Repatriation Commission rejected the Applicant's claim, prompting the Tribunal to review the evidence and legal arguments presented.

The central legal issue was whether the Applicant's psychiatric illness was attributable to his service in the Navy. The Tribunal had to determine if there was a reasonable hypothesis that the stressful events experienced during his service, specifically the break-up of his relationship and the diving fatality, caused or materially contributed to his psychiatric condition. The case hinged on the interpretation of the Veterans' Entitlements Act 1986 and relevant case law, including Repatriation Commission v Deledio, Repatriation Commission v Bey, and Repatriation Commission v O'Brien. The Tribunal had to weigh the evidence and consider whether the Applicant's pre-service history of alcohol consumption and any pre-existing psychiatric conditions could be factors in his current health issues.

The Tribunal found that the Applicant's psychiatric condition began during his service, as evidenced by his hospitalisation and psychiatric evaluation after receiving the letter from his fiancée. The Tribunal also noted that the Applicant's continued emotional and behavioural problems, including his drinking and aggression, were a direct response to the loss of his relationship. While the Applicant had a history of alcohol consumption prior to his service, there was no evidence of a psychiatric or alcohol problem before his enlistment. The Tribunal concluded that the circumstances surrounding the initiating stressful event were sufficiently linked to his service, and therefore, his psychiatric illness was war-caused.

The Federal Court upheld the Tribunal's decision, affirming that the Applicant's psychiatric condition was not war-caused, and thus his claim was rejected. The Court found that the link between the initiating stressful event and the Applicant's psychiatric condition was too tenuous to establish a reasonable hypothesis that the service caused or materially contributed to his condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 8 December 1999 the Veterans' Review Board (" the VRB") amended the Applicant's diagnosis of PTSD with associated major depression and alcohol dependence to generalised anxiety disorder with associated major depression and alcohol dependence, but rejected the Applicant's claim that this disability was war caused (T13).applicant's evidence The Applicant told the Tribunal that he was born on 26 October 1939, and that he joined the navy in 1958 for a period of nine years. Between August and November 1958 he was stationed at HMAS Cerberus, where he undertook his recruit training and where he met and formed a relationship with a Miss B. The Applicant stated that he had had previous attachments with girls, but they had not lasted beyond a few months. The Applicant stated that on completion of his recruit training, he returned to Sydney to undertake a radar operators' course at HMAS Watson, between November 1958 and March 1959. During this time he travelled to Melbourne and Miss B. came to Sydney for Christmas. On completion of his course on 10 March 1959, he was posted to HMAS ANZAC and on 16 March the ship sailed to join the Far East Strategic Reserve. On the weekend prior to the ship's departure Miss B came to Sydney and they became engaged, with the Applicant intending to buy an engagement ring during his nine months absence in the Far East. The Applicant stated that at this stage he had been accepted as an officer candidate and that he would receive material and training while on board, and all this enhanced his idea of a naval career for the future. The Applicant stated that during the early months of his voyage, he wrote to his fiance weekly, indicating his intention to convert to Catholicism and the intention to have their honeymoon in the United Kingdom as his officer training program would be undertaken there. The Applicant told the Tribunal that prior to joining the navy he had enjoyed the social life of a teenager, playing rugby in winter and surf club activity in summer. He had enjoyed one or two beers after a surf carnival and had been intoxicated on one to two occasions. The Applicant stated that during this period there had been no periods of depression and/or anxiety. On 23 September 1959, the Applicant stated that he received a letter from his fiance breaking off their relationship. He remembers reading it later and getting upset. He remembers feeling desperately lonely at this stage, and felt he could not go on. He wrote a letter from Singapore, to which he never received an answer. While ashore in Singapore he drank for four to five hours and then broke and swallowed a glass, but this had no effect. Between 28 September 1959 and 1 October 1959, the Applicant stated that the ship was at sea and he again re-read the letter and considered jumping off the stern of the ship. On return to Singapore he went ashore in company, bought a bottle off rum, drank it, broke the bottle and sliced his wrists. He felt that he needed attention, but in this respect it was not successful. He returned to the ship, where he sought attention from the medical officer, who attended to his wrists and referred him for psychiatric evaluation at BMH Singapore.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In the alternate, the Respondent contends that the circumstances surrounding the initiating stressful event are too tenuous for a finding that a reasonable hypothesis exists, and as such the Applicant's claim must be rejected.consideration and findings In initial comment the Tribunal finds the Applicant's narration of events to the Tribunal to be consistent both with the records contained in the "T" documents and with those documented by the psychiatrists that he has had recourse to visit. Further, in recognising that neither party bears the onus of proof in such matters at this stage the Tribunal, having considered all the evidence placed before it details the following findings of facts:(a) that the Applicant did commence drinking before service with a gradual increase in quantity between ages 16 and 18 years;(b) that there is no evidence to support an opinion that the Applicant had a psychiatric or alcohol problem prior to service;(c) that the Applicant received a letter from his fiance ending their relationship while at sea aboard HMAS ANZAC on 23 September 1959;(d) that the receipt of the letter and his reaction to and behaviour following such a receipt occurred during a period of operational service;(e) that the need for hospitalisation and psychiatric evaluation at BMH Singapore arose directly from his emotional and behavioural responses to the news contained within the letter;(f) that the Applicant's continuing emotional and behavioural problems after his discharge from BMH Singapore, including his drinking and behaviour towards military police, was a continuance of his response to the loss of the relationship.(g) that this continued until he returned to Australia and following redeployment to diving and further psychiatric evaluation the Applicant was placed on probation for six months and then undertook service on HMAS Melbourne prior to joining the diving team in January 1962;(h) that the diving fatality incident in April 1962 was clearly a stressful incident, which led to increasing binge alcohol consumption, notification of his drinking problem to his commanding officer by his mother and subsequent referral to a psychiatrist in May 1962;(i) that for reasons associated with the Applicant's apprehension about deep diving, his increased drinking habits, he withdrew from the diving team in January 1964;(j) that the Applicant was discharged on medical grounds following further psychiatric evaluation in February 1965, the psychiatric evaluation being undertaken as a consequence of the long period that the Applicant was absent without leave, this being his response to the Navy Board refusing an earlier medical board's recommendation for a discharge in early 1964;(k) that the Applicant had particular psychiatric diagnosis made during his service, which included reactive depression, immature personality and a well-established drinking habit; and(l) that his post service history clearly demonstrates a continuance of his drinking problems and a defined history of interpersonal difficulties with staff, demonstrated by uncontrollable aggression, increasing difficulty with sleep, tension, nightmares, irritability and difficulties with concentration.