Stevenson and Repatriation Commission

Case [2002] AATA 130

DECISION AND REASONS FOR DECISION [2002] AATA 130

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1998/121

VETERANS' APPEALS  DIVISION       )          
           Re      ALAN STEVENSON         
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr I R Way, Member         

Date1 March 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         
  ..............................................
  Member
CATCHWORDS
VETERANS' AFFAIRS –Veterans' entitlement – disability pension – whether PTSD and PSA war caused – whether reasonable hypothesis connecting each condition with applicant's operational service – whether Statements of Principles satisfied – whether facts support the hypothesis

Veterans Entitlement Act 1986 s 9, s 119, s 120, s120A, s196
Statement of Principles
     Instrument No 3 of 1999 concerning Post Traumatic Stress Disorder
     Instrument No 76 of 1998 concerning Psychoactive Substance Abuse or Dependency

Repatriation Commission v Wedekind [2000] FCA 649
Brew v Repatriation Commission (1999) 30 AAR 63 (FFC)
Johnson v Commonwealth of Australia (1982) 150 CLR 331
Federal Broom Company Pty Ltd v Selmitch (1964) 110 CLR 626
Mulvaney v Repatriation Commission (2000) 59 ALD 602
Commonwealth v Johnson (1980) 31 ALR 445
Ogden Industry Pty Ltd v Lucas (1967) 116 CLR 537
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission (1999) 29 AAR 235
Hill v Repatriation Commission [2001] FCA 1775
Byrne v Repatriation Commission (1993) 177 CLR 564
Brew v Repatriation Commission (1999) 50 ALD 403

REASONS FOR DECISION

Mr I R Way, Member   

  1. This is an application by Alan Stevenson for review of a decision of the Veterans' Review Board ("VRB") dated 17 January 1998 affirming a decision of the Repatriation Commission dated 19 August 1996 that Post Traumatic Stress Disorder ("PTSD") and Pyschoactive Substance Abuse or Dependence ("PSA") are not war-caused or defence caused within the meaning of s 9 and 70 of the Veterans' Entitlements Act 1986 ("the Act").

  2. At the hearing the Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T8) and the following documentary exhibits tendered by the parties:

    For the Applicant:

    ·     Statement of Alan Stevenson dated 30 April 1999             Exhibit A1

    ·     Statement of Alan Stevenson dated 23 October 2000       Exhibit A2

For the respondent:

·     Report of Dr Peter Mulholland dated 1 July 1999               Exhibit R1

·     Report of Dr Peter Mulholland dated 16 August 2001        Exhibit R2

The Applicant, his wife, Mrs Stevenson, Dr Mulholland and Dr Tucker gave oral evidence.

  1. The Applicant was born on 12 October 1944 and rendered service in the Royal Australian Navy from 3 June 1963 to 6 December 1973.  From 22 February 1970 to 1 March 1970 and from 22 February 1971 to 1 March 1971 the Applicant rendered operational service as a member of the crew of HMAS Yarra in the Vietnam operational area.  The Applicant's service from 7 December 1972 until his discharge on 6 December 1973 constitutes eligible defence service.  At the hearing, Mr Harding, for the Applicant, informed the Tribunal that the Applicant's claim was not related to his eligible defence service and…

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Stevenson and Repatriation Commission [2002] AATA 130
Case
[2002] AATA 130
Decision Date

CaseChat Overview and Summary

The case involves the Applicant, who is seeking a disability pension under the Veterans' Entitlement Act 1986, contending that his Post Traumatic Stress Disorder (PTSD) and Psychoactive Substance Abuse (PSA) were caused by his operational service. The Repatriation Commission contested the claim, arguing that the Applicant had pre-existing conditions that were not caused or aggravated by his service. The matter was heard by the Federal Court of Australia.

The primary legal issues before the court were whether the Applicant's PTSD and PSA were caused or materially contributed to by his operational service, and if the Statements of Principles (SoP) regarding these conditions were satisfied. The court had to determine if the Applicant's service could reasonably be hypothesised to have caused or contributed to his conditions, in line with the statutory requirements and existing SoPs.

The Federal Court examined the evidence and the relevant SoPs, focusing on whether the Applicant's service could be reasonably hypothesised to have caused or contributed to his PTSD and PSA. The court applied the principles set out in Repatriation Commission v Deledio, which outlined a four-step process for assessing such claims. The court found that while the Applicant's service may have exacerbated his conditions, the hypothesis that it caused or materially contributed to them did not fit within the SoPs' templates, and thus, the claim failed.

The Federal Court concluded that the Applicant's claims for disability pension in respect of his PTSD and PSA were not substantiated under the Veterans' Entitlement Act 1986, as the hypothesis connecting these conditions with his operational service did not satisfy the criteria set out in the relevant SoPs. The court's decision was based on the lack of a reasonable hypothesis that the service caused or materially contributed to the conditions, as required by the Act and the SoPs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 196A of the Act provides for the establishment of the Repatriation Medical Authority ("RMA") and section 196B sets out the RMA's functions. Section 196B(2) provides:"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or(b)peacekeeping service rendered by members of Peacekeeping Forces; or(c) hazardous service rendered by members of the Forces;the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and(e)which of those factors must be related to service rendered by a person;before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.Note 1: For sound medical-scientific evidence see subsection 5AB (2).Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).Note 3: For factor related to service see subsection (14). Section 119 (1) provides:"119 Commission not bound by technicalities(1) In considering, hearing or determining, and in making a decision in relation to: (a) a claim or application; … the Commission:(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities." It was contended for the Applicant that the Applicant suffered PTSD arising out of his service on HMAS Voyager in 1964 and that this condition was contributed to in a material degree, or was aggravated, by his operational service, either because of an inability to obtain appropriate clinical management for his condition during his operational service or, in the alternative, as a result of experiencing a severe stressor during his operational service. With respect to PSA it was contended that the Applicant suffered from a worsening of alcohol dependence or alcohol abuse either because of a psychiatric disorder or experiencing a severe stressor as a result of his operational service.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Insofar as stressors are concerned, it was submitted that the Applicant was already loath to be locked in when undertaking director aimer duties well before his period of operation service; that seeing HMAS Sydney close by during jack stay transfer or during escort duty and being concerned about threat of attack while in SVN waters all fall short of the requirement in either of the relevant SoPs. In consideration of this issue the Tribunal was referred to re Mulvaneyv Repatriation Commission (2000) 59 ALD 602.Consideration This matter is contested on the basis that the Applicant suffered PTSD and alcohol dependence prior to his operational service but that both of these conditions were contributed to in a material degree by, or aggravated by his relevant service. The Tribunal notes the Applicant's submissions with respect to PTSD, that a contribution in a material degree or an aggravation should be considered within the context of what his Honour Justice Kenny said in Repatriation Commission v Wedekind (supra) where at paragraph 21 Kenny J canvassed the meaning of the word "aggravation" in the context of a failure to diagnose and treat cancer resulting in a worsening or aggravation of that condition. Justice Kenny referred to the matter of Commonwealth v Johnson (1980) 31 ALR 445 and Johnson v Commonwealth (1982) 150 CLR 331 (see also Ogden Industry Pty Ltd v Lucas (1967) 116 CLR 537). The Tribunal's attention was drawn in particular to the parallel in the Applicant's case in what their Honours Gibbs CJ, Mason and Wilson JJ said in Johnson v Commonwealth (supra) with respect to the statutory object of compensation legislation namely:"The object of a statute is to provide for the payment of compensation to employees who suffer injury or disease occurring in circumstances connected with their employment by the Commonwealth… In this setting it is natural to suppose that Parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity, whether the employment so contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease. It would scarce conform to the broad policy underlying the statutory provisions to confer an entitlement to compensation in the first case but not in the second." However, Section 120A of the Act applies in this matter and the Applicant's claim must be assessed by reference to any relevant SoP. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Full Federal Court set out at pages 97 to 98 the approach to be taken by the Tribunal in cases like the present in which s120A of the Act applies."(i)The 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.(ii)If 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.(iii)If 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.(iv)The 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."