Smith and Repatriation Commission - [2002] AATA 528

DECISION AND REASONS FOR DECISION [2002] AATA 528

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/430

VETERANS' APPEALS DIVISION

Re: JAMES SMITH

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
  Mr A. Argent, Member
Date:              28 June 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS – alcohol dependence or abuse – anxiety disorder – whether war-caused – whether hypothesis reasonable – whether experienced a severe stressor – whether events involved actual or threat of death or injury – whether perception of threat sufficient – whether anxiety disorder discrete condition or associated with alcohol abuse
Veterans' Entitlements Act 1986
Cranage and Repatriation Commission [2000] AATA 1119

REASONS FOR DECISION

28 June 2002 Mr B.H. Pascoe, Senior Member

Mr A. Argent, Member

This is an application to review a decision of the Veterans' Review Board ("VRB") of 14 March 2001 which affirmed a determination of the respondent dated 25 February 1999 that a claimed condition of alcohol dependence or alcohol abuse was not war caused.
At the hearing, the applicant, Mr J. Smith, was represented by Mr G. Moore of counsel and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. Evidence was given by Mr Smith and three psychiatrists, Dr J. Cooper, Dr E. Cole and Dr T. Gidley. In addition to the documents provided by the respondent under s37 of the Administrative Appeals Tribunal Act 1975, the following documents were tendered by the parties:
Statement of Mr Smith – 12 April 2001 — Exhibit A1
Report of Dr E. Cole – 5 July 2001 — Exhibit A2
Letter from Williams Winter and Higgs to Dr J. Cooper – 21 March 2002 — Exhibit A3
Letter from Dr J. Cooper to William Winter and Higgs – 3 April 2002— Exhibit A4
Clinical Notes of Dr B. Weiss (general practitioner) — Exhibit R1
Transcript of VRB Hearing 14 March 2001 — Exhibit R2
Report of Dr T. Gidley – 4 October 2001 — Exhibit R3
Merchant Ships Movement Cards – numbered 1-46 - Exhibit R4
Merchant Ship Movement Records – from SS Koranui, SS Lowana and SS Laranah — Exhibit R5
Report of Captain H.A. Josephs, Writeway Research Service - 9 February 2002 — Exhibit R6
Mr Smith was employed on merchant ships as an Australian mariner during the Second World War from 15 October 1940 to 25 June 1945 which constituted eligible war service under the Veterans' Entitlements Act 1986 (the Act). He had two periods of operational service under the Act from 17 April 1942 to 2 July 1942 and 13 February 1943 to 23 March 1943 while serving on SS Canberra and AHS Manunda.
Mr Smith was born on 2 December 1921 and migrated with his family from England to Australia when he was 10 years old. He joined the Merchant Navy in 1938. He was employed as a stoker on coal burning vessels. After the war he continued working in boiler…

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

AGLC: Smith and Repatriation Commission [2002] AATA 528
Case: [2002] AATA 528
Decision Date: 28 June 2002

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) was asked to review a decision made by the Veterans' Review Board (VRB) concerning Mr. James Smith's claim for benefits related to his service during the Second World War. Specifically, Mr. Smith claimed that his alcohol dependence and generalized anxiety disorder were caused by his war service. The Tribunal, consisting of Mr. B.H. Pascoe and Mr. A. Argent, had to decide whether Mr. Smith's claimed conditions were war-caused under the Veterans' Entitlements Act 1986.

The key legal issues before the Tribunal were whether Mr. Smith's conditions met the criteria set out in the relevant Statements of Principle (SoP) concerning alcohol dependence, alcohol abuse, and generalized anxiety disorder. The Tribunal had to determine if there was a reasonable hypothesis connecting Mr. Smith's claimed conditions with his war service. This required the Tribunal to consider the evidence presented, including testimonies from Mr. Smith, three psychiatrists, and various documentary evidence. The Tribunal also had to interpret the term "experiencing a severe stressor" as defined in the SoPs, which necessitated an objective event involving actual or threatened death or injury.

The Tribunal found that Mr. Smith did not experience, witness, or confront any actual events involving death or injury during his war service, despite being aware of the threat posed by enemy submarines and mines. The Tribunal concluded that Mr. Smith's fear and anxiety did not reach the level of "intense fear, helplessness or horror" required by the SoPs. Furthermore, the Tribunal accepted the evidence of Dr. Gidley, who suggested that Mr. Smith's alcohol dependence was primarily due to constitutional and socio-cultural factors rather than his war experiences. The Tribunal also noted that Mr. Smith's continued employment in a similar environment for 46 years after his service suggested that he was not significantly impaired by any anxiety disorder.

Consequently, the Tribunal affirmed the decision of the VRB that Mr. Smith's conditions of alcohol dependence or alcohol abuse and generalized anxiety disorder were not war-caused. The Tribunal was satisfied beyond reasonable doubt that the conditions were not connected to Mr. Smith's war service, as required by the Act.

Orders