Trevor Jones and Repatriation Commission - [2014] AATA 887

[2014] AATA 887

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2013/3950

2013/3954

Re

Trevor Jones

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President I R Molloy

Date 28 November 2014

Place Brisbane
The Tribunal affirms the decisions under review.
..............................[Sgd]..........................................
Deputy President I R Molloy
CATCHWORDS
VETERANS’ AFFAIRS – Posttraumatic Stress Disorder – PTSD – Alcohol dependence – Alcohol Use Disorder – Gastro-oesophageal reflux disease – Smoking – Whether connected to relevant service – Hypothesis connecting the worsening of PTSD with service not reasonable – Evidence incapable of establishing connection between smoking or alcohol dependence and relevant service – Decisions of Commission under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 9, 5D, 13, 16, 120, 120A
CASES
Border v Repatriation Commission (No. 2) [2010] FCA 1430
Delahunty v Repatriation Commission [2004] FCA 309
Gibson and Repatriation Commission [2009] AATA 115
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 60 ALD 401
Repatriation Commission v Thomas (2002) 71 ALD 289
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission [2003] FCAFC 160
SECONDARY MATERIALS
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000
Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008 (revoked) as amended by No. 19 of 2014 (revoked)
Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014
Revocation and Determination of Statement of Principles concerning Gastro-oesophageal Reflux Disease No. 11 of 2005
Statement of Principles concerning Gastro-oesophageal Reflux Disease No. 65 of 2013
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009 as amended by No. 29 of 2014
REASONS FOR DECISION
Deputy President I R Molloy
28 November 2014

Mr Jones served in the Royal Australian Navy from 10 July 1965 to 9 July 1985. This included operational service in Vietnam from 3 April 1971 to 8 April 1971, and from

17 May 1971 to 1 June 1971.
On 24 June 2013 the Veterans’ Review Board affirmed a decision of the

Repatriation Commission dated 18 April 2011 which refused Mr Jones’ claims under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for gastro-oesophageal reflux disease and sleep apnoea. The Board also affirmed a decision of the Commission dated

6 February 2013 refusing his claims for alcohol dependence and alcohol abuse, and posttraumatic stress disorder (“PTSD”) as varied.
ISSUES
Mr Jones applied to the Tribunal for review of the Commission’s decisions. The issues, broadly, are whether he suffered from the war-caused incapacities as claimed. At the hearing the claim in respect of sleep apnoea was expressly abandoned.
BACKGROUND
In June 1969 Mr Jones was serving in HMAS Melbourne when it collided with
USS Frank E…

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

Case: [2014] AATA 887
Decision Date: 28 November 2014

CaseChat Overview and Summary

The Tribunal is reviewing the decisions of the Repatriation Commission concerning Mr Trevor Jones, who is claiming war-related incapacities. Notably, the Tribunal dismissed his claim for sleep apnoea. Mr Jones' service involved a traumatic incident aboard HMAS Melbourne during its collision with the USS Frank E Evans in 1969, an event that left him with enduring psychological impacts. Following the collision, Mr Jones exhibited signs of severe distress, including heavy drinking, difficulty sleeping, and an inability to concentrate. He attributed these issues to the traumatic experience of the collision, which he witnessed firsthand.

The legal issues before the Tribunal were whether Mr Jones' claims of Posttraumatic Stress Disorder (PTSD), alcohol dependence, alcohol use disorder, and gastro-oesophageal reflux disease were connected to his service in the Australian Defence Force. The Tribunal had to assess whether the worsening of Mr Jones' PTSD was reasonably connected to his service, and whether there was sufficient evidence to establish a link between his smoking or alcohol dependence and his service. The Tribunal also needed to determine if the Commission's decisions were supported by the evidence.

The Tribunal found that the evidence did not support a reasonable connection between Mr Jones' worsening PTSD and his service. The Tribunal also concluded that there was insufficient evidence to establish a link between his smoking or alcohol dependence and his service. Specifically, the Tribunal noted that Mr Jones had ceased smoking five years before his PTSD diagnosis, undermining any connection. Consequently, the Tribunal affirmed the decisions of the Commission, finding that Mr Jones' claims were not substantiated by the evidence.

The Tribunal's decision upholds the Commission's findings, affirming that Mr Jones' claims for war-related incapacities were not supported by the evidence presented. This outcome underscores the necessity for claimants to provide compelling and direct evidence linking their conditions to their service to succeed in such claims.

Orders

Orders of the court

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Background

Background to the litigation

Mr Jones applied to the Tribunal for review of the Commission’s decisions. The issues, broadly, are whether he suffered from the war-caused incapacities as claimed. At the hearing the claim in respect of sleep apnoea was expressly abandoned.BACKGROUND In June 1969 Mr Jones was serving in HMAS Melbourne when it collided with USS Frank E Evans in the South China Sea. The Frank E Evans was split in half. The Melbourne was badly holed and the forward compartments flooded. At the time of the collision Mr Jones was asleep below decks in the forward section of HMAS Melbourne. He was awakened by a loud noise and almost thrown out of his bunk. He remembers thinking the ship was sinking. He also remembers the ship seemed to rise up at the bow and then suddenly drop, shuddering and vibrating violently with a loud grinding noise of metal against metal. Not knowing what had happened Mr Jones ran to a weather deck and saw half a ship grinding and scraping down the side of the Melbourne and heard a broadcast to launch sea boats. Helicopters were also launched, using their landing lights to illuminate the water. United States sailors were lifted on board the Melbourne. Mr Jones remembers seeing survivors covered in furnace fuel oil. Some were badly burnt and injured. After the accident, HMAS Melbourne proceeded to Singapore for dry dock and temporary repair. In Singapore Mr Jones and others from the Melbourne “hit the grog”. After the repairs were carried out, the ship returned to Australia. In Australia Mr Jones was living with his partner in a caravan at the back of his parents’ home at Shellharbour. This was about a one hour drive from HMAS Albatross where he was then based. He says that for the next few months he found it very hard to cope. He says he was having trouble sleeping and finding it very difficult to concentrate as his mind kept wandering. He says he was drinking heavily, feeling on edge and uptight. He could not talk about the collision even though it was always on his mind. He says that with the help of his partner and family he started to get his life back together. He was posted to HMAS Duchess which was berthed in Sydney, and would travel from Sydney to Shellharbour on weekends. He says the Duchess was about the same size as the Frank E Evans. The Duchess was deployed on escort duties to Vietnam in April 1971. This was his first trip to Vietnam. Mr Jones says that when the Duchess was entering Vung Tau Harbour, accompanying HMAS Sydney, scare charges were set off. Mr Jones was on duty in the boiler room, at about the water-line, when he heard explosions. He says there were about six others in the boiler room including a petty officer. He says when he heard the explosions he did not know what was happening. He said he thought the ship had been hit by mines. In cross-examination he said the timing between the explosions was seconds. Mr Jones said the petty officer rang through to check what was happening. He relayed to Mr Jones what was going on. Mr Jones returned to his duties in the boiler room. The other sailors in the boiler room maintained their stations.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The evidence is that Mr Jones ceased smoking in 1987. That is five years before Dr Berglin’s diagnosis. Moreover the material is incapable of fulfilling the required connection between Mr Jones’ smoking or consumption of alcohol and his relevant service.CONCLUSION The decisions of the Commission under review are affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2013/3950 2013/3954
Re	Trevor Jones
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President I R Molloy
Date	28 November 2014
Place	Brisbane