Somerfield and Repatriation Commission - [2001] AATA 52

DECISION AND REASONS FOR DECISION [2001] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/133

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FREDERICK TEAGUE SOMERFIELD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms SM Bullock

Date31 January 2001
PlaceSydney

Decision      The Tribunal decides that: 1.     The decision under review is set aside and the Tribunal substitutes its decision that Mr Somerfield's condition of Cardiomyopathy is war-caused and the Commonwealth of Australia is liable to pay a Disability Pension for this condition from and including 16 October 1997. 2.               The assessment of the rate of Disability Pension is remitted to the Repatriation Commission.
  ..............................................
  Ms SM Bullock
  Senior Member
Catchwords
VETERANS' AFFAIRS - Disability Pension – Whether Reasonable Hypothesis Raised – Cardiomyopathy – War-Caused Alcohol Consumption

Legislation
Veterans' Entitlements Act 1986 ss120, 120A

Cases
Repatriation Commission v Keeley [2000] FCR 532
Repatriation Commission v Deledio (1998) 83 FCR 82
Borrett v Repatriation Commission [2000] FCA 1829
Repatriation Commission v Hughes (1990) 13 AAR 34
Repatriation Commission and Law (1980-81) 147 CLR 635
Re Marshall and Repatriation Commission [1987] AATA 6267

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") from a decision made by the Repatriation Commission ("the Commission") on 25 March 1998, as affirmed by the Veterans' Review Board ("the Board"), which effectively held that there was no sufficient ground for determining that the Applicant's Cardiomyopathy was a war-caused condition.
The Application for review lodged on 29 January 1999, was heard before the Tribunal on 16 November 2000. Mr Mark Vincent of Counsel represented the Applicant, Mr Frederick Teague Somerfield. Mr Richard Wallis represented the Repatriation Commission, the Respondent in this matter.
Mr Somerfield provided oral evidence to the Tribunal. The Tribunal also took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents") and the following exhibits:

Exhibit          Description Date
T1-T16 T Documents Various
A1      Statement of Dr LL Harris.            16 November 2000
A2      Further statement of Frederick Somerfield.       29 April 1999
A3      Report of Dr R. Gertler, Consultant Psychiatrist.          18 July 2000
R1      Report of Dr D. Baron, Cardiologist.       11 April 2000
R2      Report of Mr B. O'Keefe, Consulting Historian. 5 September 2000
R3      Transcript of Veterans' Review Board Hearing held in Sydney.       12 October 1998
R4      Medical records and treatment notes from Dr D. Baron, Cardiologist.
R5      Medical records and treatment notes from Dr A. Bereny.

The relevant procedural history of this matter may be summarised as follows:

On 16 January 1998, Mr Somerfield formally lodged an application for treatment and pension in respect of "dilated cardiomyopathy" (T4).
On 25 March 1998, a delegate of the Repatriation Commission wrote to Mr Somerfield advising him that:
"The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of Cardiomyopathy. As a result I find that all the evidence does not raise a reasonable hypothesis connecting Cardiomyopathy and operational service.…

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 Somerfield and Repatriation Commission

Details

AGLC: Somerfield and Repatriation Commission [2001] AATA 52
Case: [2001] AATA 52
Decision Date: 31 January 2001

CaseChat Overview and Summary

The case before the Court involved a dispute between Mr. Somerfield and the Repatriation Commission regarding his eligibility for a Disability Pension based on his Cardiomyopathy, which he claims was caused by his alcohol consumption during his military service. The matter was brought before the Court to determine whether Mr. Somerfield's service had caused or contributed to his condition and if he met the criteria for a pension under the relevant legislation and applicable principles.

The central legal issue in the case was whether Mr. Somerfield's war-time alcohol consumption, which was facilitated by his service circumstances, could be considered a war-related cause of his Cardiomyopathy. The Court needed to assess if there was a reasonable hypothesis linking his service to his condition, as required by the applicable Statement of Principles. Additionally, the Court had to determine if Mr. Somerfield's condition met the criteria for a Disability Pension under the relevant legislation.

In addressing the case, the Court examined the evidence provided by Mr. Somerfield regarding his alcohol consumption during service, which was significantly higher than his pre-enlistment habits. The Court noted that his access to alcohol was facilitated by his service, particularly during his initial training, and that his consumption escalated due to the financial resources he had during his service, the easy availability of alcohol, and the stress-relieving effects it provided. The Court found that there was a reasonable hypothesis that Mr. Somerfield's service caused or contributed to his increased alcohol consumption, which in turn led to his Cardiomyopathy. The Court concluded that Mr. Somerfield satisfied the criteria for a Disability Pension as his condition was linked to his service.

The Court ordered that Mr. Somerfield was entitled to a Disability Pension for his Cardiomyopathy, based on the reasonable hypothesis that his service caused or contributed to his condition. The Court's decision was grounded in the evidence of his increased alcohol consumption during service and the link between this consumption and his Cardiomyopathy.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is required therefore to decide matters concerning operational service in accordance with any Statement of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. In Repatriation Commission v Keeley [2000] FCR 532, the Federal Court determined that the correct Statement of Principles to be applied is that which was in force at the time of the primary decision, in this case the Commission's decision of 25 March 1998. Accordingly, the relevant Statement of Principles is Instrument 93 of 1996 concerning Cardiomyopathy.Background Before turning to the question of the Mr Somerfield's entitlement to an increase in pension for his Cardiomyopathy and whether he satisfies the relevant Statement of Principles, it is helpful to briefly outline his general background and service history. The facts contained below are by way of background information and are not in dispute: Mr Somerfield related to the Tribunal that prior to enlistment, he was working as an Articled Law Clerk at a solicitor's firm in Sydney. He told the Tribunal that at this time, he was only receiving low wages (namely ten shillings per week). Although Mr Somerfield was only sixteen or seventeen years old at the time and thus below the legal drinking age, he occasionally drank alcohol and this was almost always with a young solicitor who worked with him and was generally limited to Friday afternoons after work. Upon entering the service, Mr Somerfield was initially stationed at Ingleburn. He told the Tribunal that a Brigade Major took him "under his wing" and accordingly, Mr Somerfield received preferential treatment in that he was able to have access to alcohol everyday. Mr Somerfield stated that he received a bottle of beer per day, which he drank before going to sleep each night and that this ration of alcohol was a privilege, considering his low rank in the army at this time and that it was not available to other soldiers at his level. After training, Mr Somerfield began service in Australia and New Guinea as a member of 9 Field Ambulance. He stated to the Tribunal that he was still drinking alcohol and his consumption involved approximately one drinking session per week in a hotel as well as alcohol which he would get from the officer's mess, which was approximately two bottles of beer per day. Mr Somerfield related that he was stationed to several posts during service including Brisbane, Townsville, Tolga, Atherton and New Guinea. Throughout this time, Mr Somerfield told the Tribunal that he was drinking between eight to ten midis of beer per day. In explaining why his alcohol consumption had increased during service, Mr Somerfield noted that he was earning five shillings per day (in comparison with the ten shillings per week he was earning before enlistment) and that this extra money, coupled with the surrounding circumstances of service, enabled him to increase his alcohol consumption. Further, alcohol was now more readily and easily available, it helped to alleviate stress, it contributed to the camaraderie amongst the men and in Mr Somerfield's words – "I drank because I liked beer".

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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