William Phillips and Repatriation Commission - [2016] AATA 65

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2014/2860
Veterans' Appeals Division  )
Re: William Phillips
Applicant

And: Repatriation Commission
Respondent
CORRIGENDUM TO DECISION
TRIBUNAL:              Dr Damien Cremean, Senior Member
DATE:                       25 February 2016
PLACE:  Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The Tribunal varies the decision under review and decides that the pension be paid to the applicant at 20 per cent of the General Rate with effect from 30 June 2015. The decision is otherwise affirmed.

[sgd]...................................................................
Senior Member
Phillips and Repatriation Commission (Veterans’ entitlements) [2016] AATA 65 (9 February 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2014/2860

Re

William Phillips

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal
Dr Damien Cremean, Senior Member

Date 9 February 2016

Place Melbourne
The Tribunal affirms the decision under.

[sgd]........................................................................
Dr Damien Cremean
VETERANS ENTITLEMENTS – Claim for pension – Wernicke-Korsakoff syndrome – alcohol abuse – whether reasonable hypothesis – whether hypothesis disproved
Legislation
Veterans Entitlements Act 1986 (Cth), sections 9(1)(a),118(1),120
Cases
Bushell v Repatriation Commission (1992)175 CLR 408
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 149 ALR 721
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
9 February 2016

On 14 May 2014 the Veterans Review Board (VRB) affirmed decisions of the Respondent made on 9 October 2012 refusing claims by Mr Phillips, the Applicant, under the Veterans’ Entitlements Act 1986 (Cth) (the Act) for Wernicke-Korsakoff’s syndrome and peripheral vascular disease. The Applicant seeks review of the VRB decision concerning Wernicke-Korsakoff’s syndrome.
The Applicant is not concerned to pursue the claim for peripheral vascular disease as he agrees there is no evidence of him suffering from the condition.
The Applicant applied for review by this Tribunal on 4 June 2014. The hearing of the application was commenced by Senior Member Fice on 16 March 2015 and continued on the following day.
However, on 16 April 2015 the Senior Member recused himself. The hearing has since been resumed before me. The evidence taken before Senior Member Fice has been adopted in the review by me.
FACTUAL OUTLINE
The Applicant was born on 26 April 1939 and served in the Royal Australian Navy (Navy) from 11 April 1960 to 10 April 1969.
The Applicant had operational service on a minesweeper, HMAS Curlew, from 3 October 1965 to 16 April 1966 in Borneo, Malaya and Singapore. .
It is during this period of service that it is alleged the vessel was involved in a border incident (the Curlew incident), when it was fired upon in the vicinity of Sebatik and Nunukan Islands off Indonesia. If I follow the evidence of the Applicant and his witnesses, the bullets headed only incidentally in the direction of the vessel.
The Applicant says that as a result of the Curlew incident he was very scared. He attributes his smoking and alcohol consumption to his time in…

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 William Phillips and Repatriation Commission

Details

AGLC: William Phillips and Repatriation Commission [2016] AATA 65
Case: [2016] AATA 65
Decision Date: 9 February 2016

CaseChat Overview and Summary

William Phillips brought a claim against the Repatriation Commission seeking a pension for Wernicke-Korsakoff syndrome, which he claimed was caused by alcohol abuse during his operational service. The court was required to determine whether the Applicant could establish a reasonable hypothesis linking his alcohol abuse to his service, and if this hypothesis was disproven. The Applicant argued that the Curlew incident, where his ship was fired upon, led to his alcohol dependence and subsequent dementia. The court had to examine the evidence presented and decide if the hypothesis was reasonable and supported by the facts.

The court considered the Applicant's evidence and the reports of the Curlew incident. The Applicant's counsel argued that the Curlew incident led to his heavy drinking, but the Applicant himself did not support this view in his evidence. The court found that the Applicant's own evidence did not substantiate the significance of factors such as peer pressure or the availability of alcohol. The court concluded that the Applicant could not establish a reasonable hypothesis linking his alcohol abuse to his service due to insufficient evidence. The court held that the hypothesis was not disproven, but rather, the Applicant failed to prove it was reasonable.

The court ultimately determined that the Applicant was unable to take advantage of section 120(1) of the Act due to the lack of a reasonable hypothesis linking his alcohol abuse to his service. The court affirmed the decision of the Repatriation Commission, finding that the Applicant's claim for pension must be denied.

ORDERS:
The Tribunal affirms the decision under review.

Orders

Orders of the court

The Tribunal affirms the decision under.

Background

Background to the litigation

R D Nicholson J, in the same case, agreeing with the plurality, and referring (at 734) to Bushell, above, said that it would be rare for a hypothesis put forward by a medical practitioner who is eminent in the relevant field of knowledge to be held to be unreasonable and then said this:(7) A “mere possibility”, in the sense of a hypothesis advanced, for example, by a medical practitioner speaking within the ambit of his expertise, will ordinarily raise a reasonable hypothesis. ...(8) A “mere possibility”, in the sense of a hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis — it will not be a hypothesis “raised by the facts”.The raised facts The Applicant’s counsel, in opening, referred to a number of factors of relevance to the Applicant’s heavy drinking during operational service. They included the life-threatening event of the Curlew incident; stress or anxiety of being in a warzone; peer group pressure to drink; and the easy availability of alcohol. In the end, however, counsel relied on the Curlew incident in grounding the hypothesis in its effects on the Applicant, leading to alcohol dependence and thus to dementia. This is because the Applicant’s own evidence did not support a view that the other factors were of significance. The Applicant himself denied in evidence that he drank alcohol during service due to peer pressure. He denied that while on shore leave he felt any pressure from other persons to drink alcohol. He said he was not bored during service because he was busy. He said, as regards how he felt being in being in a war-zone, that I don’t think about it. And he denied drinking alcohol to avoid thinking about even being in a war-zone. Finally, the evidence relating to the availability of alcohol on service was equivocal or unclear. As regards the Curlew incident, I heard evidence from several persons (including Messrs Bensted ,Ward, Willcox and Baker) and I also received into evidence the Ship’s Log (Log) and various Reports of Proceedings of the Curlew for relevant periods. All the witnesses who gave evidence on the point recalled an incident in which the Curlew was fired upon in or near Indonesian waters --perhaps by Indonesian military. Accounts between them differed however so that the Curlew incident, following cross-examination, became a little nebulous in exact detail. But it does seem to me the incident did occur and that bullets of one description or another either fell short of or went over the vessel to a greater or lesser distance. The Report of Proceedings for December 1965, signed by Mr Willcox in his official capacity at the time, reports an incident of note: at 18.45 Thursday 30th December when ,whilst shifting to the night anchorage, several tracer bullets from a minor skirmish came in the direction of the ship. It states that:Despite them falling very short it did much to remind the ships company of the purpose of their service in this area. The area in question appears to be the Wallace Bay-Nunukan area. However, as was pointed out, this does not appear to accord with the movements of the vessel on that date in the Log. On that date the Log contains no record of such an incident occurring. Much was sought to be made of this discrepancy but Mr Willcox in his evidence said his Report of Proceedings was wrong and, while he could not explain the lack of reference to the matter in the Log, he did explain that he was not the one who kept the Log.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Applicant in my view is for these reasons unable to take advantage of section 120(1) of the Act CONCLUSION For the above reasons I am satisfied that the decision under review must be affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS' APPEALS DIVISION
File Number	2014/2860
Re	William Phillips
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Dr Damien Cremean, Senior Member
Date	9 February 2016
Place	Melbourne