Williams and Repatriation Commission (Veterans' entitlements) - [2018] AATA 3015

Williams and Repatriation Commission (Veterans' entitlements) [2018] AATA 3015 (17 August 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/2607
Re:Darryl Williams
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Senior Member Linda Kirk

Date:17 August 2018
Place:Sydney

1. The reviewable decision, being the decision of the Repatriation Commission made 7 November 2014 refusing Mr Williams’ claim in respect of Post-Traumatic Stress Disorder, is set aside.
2. In substitution, it is decided that the Post-Traumatic Stress Disorder suffered by Mr Williams, with a clinical onset of 21 January 2002, is war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).
....................[sgd]....................................................
J W Constance
Deputy President
Catchwords
VETERANS’ ENTITLEMENTS – whether injury or disease is war-caused – date of the clinical onset of the condition – Post-Traumatic Stress Disorder – Alcohol Use Disorder – Major Depressive Disorder – hypothesis connecting injury or disease with the circumstances of operational service – Statement of Principles – decision set aside
Legislation
Veterans’ Entitlement Act 1986 (Cth)
Cases
Bull v Repatriation Commission [2001] FCA 1832
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Warren (2008) 167 FCR 511
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed, 2013)
REASONS FOR DECISION
Deputy President J W Constance
Senior Member Linda Kirk
17 August 2018

On 1 July 2014 Mr Williams made an application for Post-Traumatic Stress Disorder (PTSD) to be accepted as a war-caused injury in accordance with the Veterans’ Entitlements Act 1986 (Cth). He claimed he has suffered, and continues to suffer, the condition arising out of service he rendered as a member of the Australian Army while serving in East Timor in 2001-2002.
On 19 February 2016 the Veterans’ Review Board affirmed a decision of the Repatriation Commission refusing the claim.
On 17 May 2016, Mr Williams applied to the Tribunal to review the Commission’s decision.
For the reasons which follow, the decision of the Repatriation Commission will be set aside. In substitution it will be decided that the condition of Post-Traumatic Stress Disorder suffered by Mr Williams was war-caused.
B: LEGISLATIVE FRAMEWORK
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:
War caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service
Standard of proof when claimed injury or disease said to arise out of operational service
Section 120 provides, in part:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or…

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: [2018] AATA 3015
Decision Date: 17 August 2018

CaseChat Overview and Summary

This case concerned an appeal by Mr Williams against a decision of the Repatriation Commission that his Post-Traumatic Stress Disorder (PTSD) was not war-caused. The Administrative Appeals Tribunal had affirmed the Commission's decision. The matter came before Deputy President Constance of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Williams' PTSD resulted from an occurrence that happened while he was rendering operational service, as defined by section 9 of the *Veterans' Entitlements Act 1986* (Cth). This required the Tribunal to consider the standard of proof stipulated in section 120 of the Act, which mandates that the Commission must be satisfied beyond reasonable doubt that there is no sufficient ground for determining an injury or disease to be war-caused. Furthermore, the Tribunal had to assess whether a hypothesis connecting the PTSD to the circumstances of Mr Williams' service was reasonable, as defined by section 120A of the Act, which requires reference to a Statement of Principles.

The Tribunal accepted Mr Williams' evidence regarding the harassment and physical assaults he endured from colleagues, Mr Toner and Mr Frost, both before and during his deployment to East Timor. It also accepted the opinion of Dr Dinnen, a psychiatrist, regarding Mr Williams' diagnosis of PTSD and its onset date. Applying section 120 of the Act, the Tribunal found that it could not be satisfied beyond reasonable doubt that Mr Williams' PTSD was not war-caused, given the material before it and the accepted evidence. The Tribunal noted that it was not required to apply the definition in the Statement of Principles to determine the existence or description of the condition itself.

Consequently, the Tribunal set aside the reviewable decision of the Repatriation Commission and substituted a decision that Mr Williams' PTSD, with a clinical onset of 21 January 2002, was war-caused within the meaning of the *Veterans' Entitlements Act 1986* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

We are not required to apply the definition in the Statement of Principles to determine the existence of the claimed condition or how it should be described.[3][3] Repatriation Commission v Warren (2008) 167 FCR 511.Evidence of Mr Williams Mr Williams made written statements dated 23 February 2006[4] and as part of his claim dated 27 June 2014.[5] He also gave evidence at the Tribunal hearing on 13 March 2018.[4] Exhibit R1 at 81.[5] Exhibit R1 at 99. Having observed Mr Williams give evidence we are satisfied that he was an honest witness who gave his evidence to the best of his recollection. In deciding whether Mr Williams suffers from PTSD and the date of onset of that condition, we accept his evidence. In 2001 Mr Williams was a Private in the Australian Army stationed at Townsville, Queensland. He was living in married quarters with his wife and children. On 15 November 2001 Mr Williams was physically assaulted at his home by Mr Toner, a neighbour and co-worker. This occurred during Mr Williams being engaged in training prior to his being deployed to East Timor. During November and December 2001 Mr Williams was harassed at work, both physically and verbally, by Mr Toner and Mr Frost (Mr Toner’s cousin). He received threatening telephone calls directed at his family and himself. On 1 December 2001 Mr Williams was at home with his family when Mr Toner and Mr Frost attempted to break into Mr Williams’ house. Mr Williams was verbally abused by the two men. On other occasions Mr Williams was awoken by someone kicking his front door in the early hours of the morning. During training prior to deployment to East Timor, Mr Williams was physically attacked in the lunch room on several occasions and his uniform was spat and urinated on. He was threatened by Mr Frost that he (Mr Frost) would “get him” for what he had done involving Mr Toner’s partner at a social function at Mr Williams’ home.[6] Mr Williams had not engaged in inappropriate conduct involving Mr Toner’s partner at any time.[6] Transcript 13/03/18 at 11. The treatment experienced by Mr Williams caused him to become very anxious. At times his anxiety was such that he would vomit before going to work. He reported the incidents which occurred during pre-deployment training to his superior officer but the conduct towards him continued. Mr Williams arrived in East Timor on 6 December 2001. Mr Frost was part of the same deployment and was based at Dili. Most of the time Mr Williams was based on board his boat in the harbour and travelled to and from another port in East Timor. However, on occasions Mr Williams was required to stay onshore in Dili. On these occasions he would come into contact with Mr Frost on a daily basis; one of these occasions was for a period of two weeks. During these times Mr Frost kicked chairs at Mr Williams as he walked past. On other occasions Mr Frost shoulder-barged him. Mr Frost also threatened Mr Williams that he (Mr Frost) was “going to sort it out for his cousin”.[7] Mr Williams felt intimidated by this conduct. [7] Transcript 13/03/18 at 14.

Decision

Reasons for decision

Taking into account the evidence of Mr Williams and the opinion of Dr Dinnen, both of which we have accepted for the purpose of determining the disease from which Mr Williams suffers, we cannot be satisfied beyond a reasonable doubt that it was not war-caused. CONCLUSION The reviewable decision, being the decision of the Repatriation Commission made 7 November 2014 refusing Mr Williams’ claim in respect of Post-Traumatic Stress Disorder, will be set aside. In substitution, it will be decided that the Post-Traumatic Stress Disorder suffered by Mr Williams, with a clinical onset of 21 January 2002, is war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

Section 9 of the Act sets out the circumstances in which an injury is taken to be "war‑caused". The relevant parts of that section are:War caused injuries or diseases(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational serviceStandard of proof when claimed injury or disease said to arise out of operational service Section 120 provides, in part:Standard of proof(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note: This subsection is affected by section 120A.…(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease; or(c)that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.…(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.Reasonableness of hypothesis to be assessed by reference to Statement of Principles Subsection 120A(3) provides:For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a)a Statement of Principles determined under subsection 196B(2) or (11); or(b)a determination of the Commission under subsection 180A(2);that upholds the hypothesis.