Williams and Repatriation Commission - [2000] AATA 272

DECISION AND REASONS FOR DECISION [2000] AATA 272

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1714

VETERAN'S APPEALS DIVISION )

Re John Edward WILLIAMS
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Rear Admiral A.R. Horton, Member

Date7 April 2000
PlaceSydney

Decision The Tribunal - (a) sets aside that part of the decision under review that refused the claim of John Edward Williams ("the Applicant") in respect of organic brain damage and assessed pension at 70 percent of the General Rate; (b) in substitution therefor, it determines that the Applicant's organic brain damage was war-caused pursuant to s 9 of the Veterans' Entitlement Act 1988 ("the Act"), and that pursuant to s 24 of the Act the Applicant is entitled to pension at the Special Rate with effect from 4 September 1996.

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M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war-caused alcohol abuse and personality disorder – motor vehicle accident - organic brain damage – whether an accepted disability contributed to car accident – whether organic brain damage arose from war-caused injury or disease – whether pension not payable due to serious default or wilful act

Veterans' Entitlement Act 1986 ss 9(1)(b), 9(2)(a), 9(4), 24(1)(b), 120(1), 120(3), 120(4)

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Ferriday v Repatriation Commission (1996) 69 FCR 521
Lowerson v Repatriation Commission (1994) 33 ALD 385
McPherson v Repatriation Commission (1989) 87 ALR 275
Repatriation Commission v Levi (1994) 61 FCR 189

REASONS FOR DECISION

7 April 2000 Mrs M T Lewis, Senior Member
Rear Admiral A.R. Horton, Member

This is an application lodged by John Edward Williams ("the Applicant") for review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 14 May 1997 which accepted the Applicant's claim for psychoactive substance abuse (alcohol), and refused the Applicant's claim in respect of organic brain damage. Disability pension was assessed at 70% of the General Rate, effective from 4 September 1996. The Applicant sought review by the Veterans' Review Board ("the VRB") and on 29 July 1998 the VRB affirmed the decision of the Respondent.
The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Applicant's wife, Mrs Robyn Williams, gave oral evidence at the hearing.
The following documentary evidence was tendered on behalf of the Applicant:

Written statement of Robyn Williams dated 27 April 1999 and another that was undated (exhibit A);
Letter from Commercial Union Assurance Company of Australia Ltd to the Applicant, dated 10 May 1983 (exhibit B).

The following conditions suffered by the Applicant have been accepted as war-caused:
(i)psychoactive substance abuse or dependence;
(ii)perceptive deafness;
(iii)hyperkeratoses;
(iv)neurodermatitis;
(v)inadequate personality with gastrointestinal disorder.
The issue before the Tribunal is whether the Applicant's organic brain damage is a war-caused injury, as defined by s 9(1)(b) of the Act and whether s 9(4) has the effect of excluding him from the application of s…

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 Williams and Repatriation Commission

Details

AGLC: Williams and Repatriation Commission [2000] AATA 272
Case: [2000] AATA 272
Decision Date: 7 April 2000

CaseChat Overview and Summary

The case of Williams v Repatriation Commission involved the Applicant, a veteran, seeking to establish whether his organic brain damage was attributable to his war-related injury or disease. The Applicant, who served in Vietnam, claimed that his post-service alcohol abuse and subsequent car accident resulting in organic brain damage were linked to his military service. The Commission was tasked with determining if the Applicant's war-caused alcohol abuse and personality disorder contributed to the accident, and if the organic brain damage arose from a war-caused injury or disease. Additionally, the Court had to decide if the pension was not payable due to the Applicant's serious default or wilful act.

The central legal issues revolved around the interpretation and application of the Veterans' Entitlement Act 1986, particularly sections 9(1)(b), 9(2)(a), 9(4), 24(1)(b), 120(1), 120(3), and 120(4). The Court needed to ascertain whether the Applicant's war-caused alcohol abuse and personality disorder were significant contributing factors to the car accident that led to the organic brain damage. Furthermore, the Court had to determine if the organic brain damage arose out of the war-caused injury or disease, and if the Applicant's actions constituted a serious default or wilful act that would disqualify him from receiving a pension.

The Court examined the evidence provided by the Applicant's wife, Robyn Williams, who testified about the Applicant's drinking habits and the circumstances of the accident. The Court also considered the impact of the Applicant's war service on his mental health and behaviour post-service. The Court concluded that the Applicant's war-caused alcohol abuse and personality disorder significantly contributed to the car accident and the subsequent organic brain damage. The Court found that the organic brain damage arose out of the war-caused injury or disease, and while the Applicant's actions were reckless, they did not constitute a serious default or wilful act that would disqualify him from receiving a pension.

The Court ordered that the Applicant's pension should be payable, recognising the causal link between his war service, the resulting alcohol abuse and personality disorder, and the organic brain damage. The decision underscores the importance of considering the totality of a veteran's condition and the impact of war-related injuries or diseases on their post-service life.

Orders

Orders of the court

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Background

Background to the litigation

Pursuant to s 120A(4) of the Act, although the Applicant's claim was lodged after 1 June 1994, as there is no Statement of Principles in respect of organic brain damage, this matter falls for determination pursuant to s 120(1) and (3) of the Act. background The Applicant was born on 5 March 1945, and was aged 54 years at the time of the hearing. He served in the Army on full-time duty from 30 June 1965 to 29 June 1967, including operational service in Vietnam from 6 May 1966 to 12 May 1967 (T3). After gaining his intermediate certificate, the Applicant qualified as a wool classer and worked as a shearer. He worked in sales after his military service, and then entered the building industry, and from 1979 he owned and operated his own concrete company. He married in 1968 and has three children (T32). In an Alcohol Questionnaire completed on 24 November 1996 (T26) the Applicant said that his drinking habit changed from drinking 1 to 2 beers per week for social reasons, to drinking 18 or more standard drinks per day since his active service in Vietnam. This level of drinking is not consistent with the history he provided at the time of a medical examination in October 1967 (T4). At that time he said he had two drinks per day on average. The Applicant was involved in a car accident on 30 December 1982, as a result of which he now suffers from organic brain damage. He was unable to give evidence at the hearing because of his condition.evidence of robyn williams In her oral evidence Mrs Williams said that the Applicant did not drink very much prior to going to Vietnam, but when he returned he drank for two months at the hotel, constantly. It took him three months to find a job after returning from Vietnam. He obtained a job working for Goodyear Tyre and Rubber as a service manager, and continued to drink after work every night. This pattern continued until the time of his accident. She estimated that he drank up to four or five schooners a night. She said until 1982 she saw him drunk regularly, and she was not aware that he made any attempts to reduce his drinking. Mrs Williams and the Applicant moved from Sydney to Mullumbimby. He had his own concreting business in Mullumbimby. She said –… we used to have a lot of men working for us. After work, after they would do concreting they would go back to a hotel and John [the Applicant] would shout them tea and they would drink there. Then he wasn't capable, that would be say 40 – 50 kilometres away, and he would just drive a little bit because he was driving a 5 tonner then and he would just stop because he couldn't go any further and just sleep, pull up on the side of the road and arrive home early hours of the morning. (Transcript p4 ) Mrs Williams believed that on 30 December 1982, the day of the accident, the Applicant had been drinking at the local RSL club from approximately 2.30 or 3.00 pm. The RSL club is located about 5 or 6 kilometres from their home. Subsequently she spoke to the club supervisor who had been on duty on the day in question, and he told her "he knew he shouldn't have let John drive home that night". Mrs Williams did not remember the supervisor's name and understood that he has since moved. She said from her observations of her husband's drinking, he probably would have had 5 or 6 schooners between 2.30 or 3pm and 7 or 8pm when he left the club that night.

Evidence

Evidence Before The Court

The Applicant was involved in a car accident on 30 December 1982, as a result of which he now suffers from organic brain damage. He was unable to give evidence at the hearing because of his condition.evidence of robyn williams In her oral evidence Mrs Williams said that the Applicant did not drink very much prior to going to Vietnam, but when he returned he drank for two months at the hotel, constantly. It took him three months to find a job after returning from Vietnam. He obtained a job working for Goodyear Tyre and Rubber as a service manager, and continued to drink after work every night. This pattern continued until the time of his accident. She estimated that he drank up to four or five schooners a night. She said until 1982 she saw him drunk regularly, and she was not aware that he made any attempts to reduce his drinking. Mrs Williams and the Applicant moved from Sydney to Mullumbimby. He had his own concreting business in Mullumbimby. She said –… we used to have a lot of men working for us. After work, after they would do concreting they would go back to a hotel and John [the Applicant] would shout them tea and they would drink there. Then he wasn't capable, that would be say 40 – 50 kilometres away, and he would just drive a little bit because he was driving a 5 tonner then and he would just stop because he couldn't go any further and just sleep, pull up on the side of the road and arrive home early hours of the morning. (Transcript p4 ) Mrs Williams believed that on 30 December 1982, the day of the accident, the Applicant had been drinking at the local RSL club from approximately 2.30 or 3.00 pm. The RSL club is located about 5 or 6 kilometres from their home. Subsequently she spoke to the club supervisor who had been on duty on the day in question, and he told her "he knew he shouldn't have let John drive home that night". Mrs Williams did not remember the supervisor's name and understood that he has since moved. She said from her observations of her husband's drinking, he probably would have had 5 or 6 schooners between 2.30 or 3pm and 7 or 8pm when he left the club that night. In her undated statement (exhibit A) Mrs Williams said that following the accident the Applicant was charged and convicted of driving with a blood alcohol level above the prescribed minimum. When Mrs Williams attempted in about April 1999 to obtain the traffic accident report she was advised that such records were not kept for more than ten years. In her statement dated 22 April 1999 (exhibit A) Mrs Williams said that she was still repaying the loan for the new holden V8 one tonne truck which was wrecked in the accident. She said that the insurance company refused to pay the claim because the Applicant was driving under the influence. A letter from the Commercial Union Assurance Co. of Aust. Ltd dated 10 May 1983 to the Applicant (exhibit B) noted that his blood alcohol was .125 which is in excess of the amount permitted by law. As he was in breach of General Exclusion A(c) of the Policy Conditions, the insurance company refused to indemnify him for the loss of the vehicle.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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