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No.19 September 2008

Cunningham v Repatriation Commission

[2008] FMCA 1251

COURT Federal Magistrates Court, Melbourne
FEDERAL MAGISTRATE Burchardt FM
DATE OF DECISION 19 September 2008
DECISION Appeal dismissed, cross appeal allowed
ISSUES Disease – recurrence – aggravation

Facts

Mr Cunningham rendered two periods of operational service aboard HMAS Sydney  from 17 November 1969 to 5 December 1969 and 16 February 1970 to 5 March 1970.  He made an unsuccessful claim to the Repatriation Commission (Commission) for peptic ulcer, hiatus hernia, irritable bowel syndrome,  depressive disorder with some features of anxiety and alcohol dependence or abuse.  The decision was affirmed on review by the Veterans’ Review Board (VRB).  On review the Administrative Appeals Tribunal (Tribunal) affirmed the Commission’s decision in relation to depressive disorder, irritable bowel syndrome and hiatus hernia, and set aside the decision in relation to the claim for peptic ulcer disease, accepting it as war-caused.  Mr Cunningham appealed to the Federal Court, and the Commission cross appealed in respect of the acceptance of peptic ulcer. The matter was then transferred to the Federal Magistrates Court.

The Tribunal’s reasoning

Mr Cunningham suffered from seasickness before he went to Vietnam. However, he suffered much more severely on his two operational service trips than he had previously.  Mr Cunningham said that he kept to himself, where possible, as he was subject to critical comments and laughter. He said he became depressed with the constant seasickness as he was unsure of his future; that he felt he had let down his father, a former navy man, and might not be able to continue his long-held ambition. The determinative passage in relation to the Tribunal’s reasoning was as follows:

‘Here the hypothesis of depression arising from severe seasickness is reasonable under the terms of the SoP. The question there is whether the Tribunal can be satisfied that the seasickness was not attributable to operational service and whether the clinical onset of the depressive disorder was within two years of that stressor. In relation to the latter question the records show a diagnosis of an acute anxiety state in March 1971. I am prepared to accept that as the date of clinical onset of his depressive state. … However, it is clear that Mr Cunningham experienced the onset of seasickness on the two voyages prior to operational service. From his first exposure to the open sea on board a ship he experienced seasickness and it would seem clear that he had a constitutional predisposition to that element. It was only when he was in open seas that he suffered the illness with no ongoing symptoms once on dry land. That constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long-held ambition to be a sea going sailor was not to be achieved. Being a pre-existing condition with the symptoms well established prior to operational service, I am satisfied that the seasickness was not war-caused. As such, the depressive disorder cannot be accepted as war-caused under instrument 58 of 1998.’

Grounds of appeal

Mr Cunningham grounds of appeal were that the Tribunal erred in law by:

The Commission argued that none of these matters were made out and that were not questions of law. In relation to the cross appeal, the Commission submitted that Mr Cunningham was not suffering from peptic ulcer on the application day, or subsequently, and so the Tribunal erred in finding the disease to be war-caused.

The Court’s Consideration

First ground – Mr Cunningham’s health before operational service

Federal Magistrate Burchardt did not consider that the Tribunal had erred in relation to the first ground of appeal because the Tribunal had found that the seasickness had been evident on two voyages before operational service began and therefore was a pre-existing condition with the symptoms well established before operational service.

Second ground – definition of ‘disease’ and reference to ‘recurrence’

Burchardt FM held that this ground failed because the recurrence of symptoms in this case was not a recurrence of the pre-existing disease. Further, the Court held that the temporary presence of symptoms was not sufficient to show an aggravation.

Third ground – depression caused by sea sickness

Federal Magistrate Burchardt also considered that the third ground of appeal failed.  His Honour considered that the Tribunal did expressly consider the hypothesis that the seasickness caused the depression. His Honour noted that while the Tribunal, to an extent, rolled the three hypotheses into one it could not be overly criticised for approaching the matter in the way that it did as it largely followed Mr Cunningham’s evidence and the submissions made by counsel on his behalf. 

Overall,  Federal Magistrate Burchardt held that the finding by the Tribunal that ‘constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long-held ambition to be a sea going sailor was not to be achieved’ was open to it on the materials and did not constitute an error of law.

Formal decision

The appeal was dismissed and the cross-appeal was allowed.

Editorial Note

An appeal has been lodged from this decision to the Federal Court.

Honour’s reasoning in relation to the second ground of appeal was brief, but touched on two importance concepts – the definition of ‘disease’ in the VEAand the meaning of aggravation.

Definition of ‘disease’ and reference to ‘recurrence’

‘Disease’ in s5D of the VEA is defined as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or the recurrence of such an ailment, disorder, defect or morbid condition. In this case, the Court  noted that the ‘recurrence of symptoms’ is not necessarily a ‘recurrence of a disease or injury’. 

Aggravation

Under the VEA, if an injury or disease has been aggravated by service, that injury or disease is treated as ‘war-caused’ or ‘defence-caused’. This case follows Repatriation Commission v Yates (1995) 57 FCR 241 which held that an aggravation of a symptom is not necessarily an aggravation of the underlying disease. An aggravation must be more than temporary in nature and it must worsen the injury or disease itself rather than merely worsen its symptoms.

It is also important to remember, in respect of cases where aggravation is claimed, that there is a limitation. A veteran or member needs to have had at least 6 months eligible war service or defence service for an injury or disease to be accepted on the grounds of aggravation by service. However, this limitation does not apply to a veteran, such as Mr Cunningham, who rendered operational service.

All Practice Notes