Smith and Repatriation Commission (Veterans’ entitlements)

Smith and Repatriation Commission (Veterans’ entitlements) [2015] AATA 786 (9 October 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/3403
Re	Peter Smith
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	9 October 2015
Place	Brisbane

The decision under review is set aside and a decision substituted that the applicant’s injury is service related within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

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Senior Member Bernard J McCabe

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – defence service with Royal Australian Navy – posttraumatic stress disorder accepted – whether causal link between PTSD and defence service – “test of attributability” – applicant “induced or encouraged” to be at place – injury attributable to defence service – decision under review set aside and substituted

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), s 70(5)

Defence Force Discipline Act 1982 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A

CASES

Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308

Holthouse v Repatriation Commission (1982) 1 RPD 287

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Comcare v PVYW (2013) 250 CLR 246

Roncevich v Repatriation Commission (2005) 222 CLR 115

SECONDARY MATERIALS

Statement of Principles concerning Posttraumatic Stress Disorder No 83 of 2014

REASONS FOR DECISION

Senior Member Bernard J McCabe

9 October 2015

1. Peter Smith has developed post-traumatic stress disorder (PTSD). He says that condition was a consequence of his defence service in the Navy. He applied for a pension under the Veterans’ Entitlements Act 1986 (the VE Act) on that basis. The Repatriation Commission rejected the claim: it doubts whether incidents described by the applicant occurred as he alleges. But the Commission has a further problem. It argues that even if I were satisfied the events occurred exactly as described, I should not accept there is a link between the events which triggered the PTSD and the applicant’s defence service.

2. I am reasonably satisfied both incidents occurred substantially as the applicant described, and I am persuaded at least one of the incidents can be linked to his defence service. I have decided to set aside the decision under review. I explain my reasons below.

   Mr Smith suffers from PTSD

3. The parties accept Mr Smith suffers from PTSD. That condition was diagnosed by Dr Majumdar in 2011. If Mr Smith is to link his condition to his defence service, he must satisfy the relevant statement of principles published by the Repatriation Medical Authority. In this case, the relevant statement of principles is No 83 of 2014. (There is an earlier statement of principles – No 6 of 2008 – but the language is effectively identical for present purposes.)

4. An individual may satisfy the statement of principles if he experiences either a category 1A or 1B stressor before the onset of PTSD. A category 1A stressor is defined (at clause 9) to include the following severe traumatic events:

   (a) experiencing a life-threatening event;

   (b) being subject to a serious physical attack or…