VeRBosity Volume 16 No. 2
Federal Court of Australia
Keeley (resp) 40
Flynn & Connolly (resps) 43
Wedekind (resp) 45
High Court of Australia
Captain Neville Howse VC 50
This edition of VeRBosity contains reports on six Federal Court decisions relating to veterans’ matters handed down in the period from April to June 2000.
The decision of the Full Court in Keeley has important implications for the review of decisions. The Court upheld an earlier decision that the applicant had an accrued right to have the claim reviewed in terms of an earlier and more favourable Statement of Principles.
Flynn & Connolly and Connors involved the question of whether the AAT had correctly applied the “reasonable hypothesis” standard of proof. Wedekind concerned a failure to diagnose a medical condition and Gibson involved an issue of natural justice.
This edition includes reports on selected AAT decisions handed down in the period from April to June 2000 as well as information about Statements of Principles issued by the Repatriation Medical Authority and matters under formal investigation.
Administrative Appeals Tribunal
Re J R McClure and Repatriation Commission
14 April 2000
Serious default or wilful act drink driving
This case concerned a claim that Mr McClure’s cervical spondylosis was war-caused. He rendered operational service in Vietnam in 1969-70. As a result of his service, he developed psychoactive substance abuse and post traumatic stress disorder, both of which were accepted as war-caused.
In June 1972, he was involved in a motor vehicle accident at the Gold Coast. The accident occurred at about 3.30am when he was driving home from a party at Broadbeach. His car was on the wrong side of a divided road and when he swerved back to the left side, his vehicle crashed into a building. He fractured the base of his odontoid process and subsequently developed cervical spondylosis which was the subject of this claim.
There was evidence before the Tribunal that on the afternoon before the accident, the veteran had been drinking at a Surfers Paradise beer garden from about 4 to 6pm. He went to the party at about 8 or 9pm taking with him a 26 fl oz bottle of bourbon which was “mostly full”. He believed that he was the only person who drank the bourbon. The police told him that there was about half a bottle of bourbon in the car after the accident. He was subsequently convicted of driving without due care and attention. There was no information available to the Tribunal about his blood alcohol concentration after the accident. A police report relating to the accident had been destroyed.
Mr McClure gave evidence at the Tribunal that he had become involved in a discussion with two women at the party about Australia’s involvement in Vietnam and had become very angry. He also smoked some cannabis. He had become confused as a result of the argument and this had caused him to drive on the wrong side of the road.
The issue before the Tribunal was whether Mr McClure’s cervical spondy-losis “resulted from ... [his] serious default” in terms of s 9(4) of the VE Act. It was accepted that the accident would not have occurred but for his suffering from psychoactive substance abuse and post traumatic stress disorder. Consequently, his cervical spondylosis was war-caused in terms of s 9(2). However, sub-section 9(2) did not apply to his cervical spondylosis if:
“... the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.” (s 9(4))
The Tribunal referred to previous authorities as to the meaning of “serious default” in the context of compensation provisions. The Tribunal said that a “serious default” might be thought to be a failure to act that it is not trifling. In view of the purpose of the Act to provide for the payment of pensions, benefits and medical and other treatment for veterans, it must be a failure that warrants severe condemnation for the effect of finding that there has been a “serious default” in the context of s 9(4) is to penalise a veteran severely. In determining what is and is not a serious default in the context of the Act requires a consideration of the whole of the circumstances surrounding the veteran’s actions, or lack of action.
The Tribunal found that the accident had occurred as a result of Mr McClure’s default but the question remained as to whether the default was serious. The Commission submitted that it was serious because he drove while his ability to do so was impaired and the accident resulted from his impaired driving. His ability was impaired because of one of the following:
the alcohol he had consumed prior to driving;
a combination of alcohol and cannabis; or
a combination of alcohol, cannabis and the effects of his PTSD and/or psychoactive substance abuse.
The Tribunal was satisfied that the veteran’s blood alcohol concentration at the time of the accident would have exceeded 0.05. However, it was required to assess what amounted to a “serious default” by reference to the state of knowledge in 1972. The Tribunal said:
“Taking into account the lack of relevant evidence, I am not satisfied that Mr McClure would have been driving his motor vehicle under the influence of alcohol. Similarly, apart from the fact that he smoked some cannabis, there is no evidence upon which I am satisfied that he was driving under the influence of a drug.
If alcohol and drugs were the only issues to consider, I would not be satisfied that Mr McClure’s driving home in the circumstances represented a failure to fulfil his obligation to maintain control of his motor vehicle. It would not represent a serious default. They are not, however, the only issues to consider. I must also consider the whole of the circumstances and that means that I must consider his actions in choosing to drive after he had consumed alcohol and while he was upset after the argument. Those circumstances do not include his knowing that he suffered from PTSD or psychoactive substance abuse for there is no evidence that he was aware in 1972 that he suffered from those conditions or that he had received treatment for them. They do include his being aware that he could get confused about the correct side of the road on which to drive.
Having regard to those circum-stances, Mr McClure might be thought to be unwise to drive when he was upset after an accident. That is somewhat short of saying that he was in serious default. There is no evidence that his driving had been anything other than appropriate before the accident. There is no evidence to suggest that he should have known that his driving was likely to be impaired on that particular occasion. There is no evidence that his being confused at times about the correct side of the road had ever resulted in his being unable to steer a safe course on the road in the past. I am not satisfied that he was in serious default in choosing to drive home a short distance when he was angry and there is no evidence to suggest that Mr McClure was under the influence of alcohol or drugs.
In any event, the accident did not result from any incapacity to drive on the night per se but from the disorientation and confusion caused by his PTSD. Accepting as I do that Mr McClure thought that he was in Vietnam, it was the effect of his becoming disoriented and thinking that he was in Vietnam, and so required to drive on the right hand side of the road, that was the ultimate cause of his having the accident. I am satisfied that his disorientation, and subsequent despair, were symptoms of his PTSD. That he suffered from that condition was not a matter over which he had any control. In view of the lack of evidence to suggest that he knew that he was suffering from PTSD at the time or that he had any reason to consider that his driving was likely to be impaired, I am not satisfied that his choosing to drive in those circumstances and driving as he did amounts to a serious default.
It follows that I do not consider Mr McClure’s cervical spondylosis ‘resulted from ... [his] serious default’ as that expression is used in s 9(4) of the Act.”
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