Aitken and Repatriation Commission - [2001] AATA 921

DECISION AND REASONS FOR DECISION [2001] AATA 921

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1618

VETERANS' APPEALS DIVISION )

Re HUGH AITKEN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr M E C Thorpe Member Mr A Limbury Member

Date7 November 2001
PlaceSydney

Decision        The Administrative Appeals Tribunal determines that the decision under review of the Repatriation Commission dated 28 July 1999 as affirmed by the Veterans' Review Board on 20 January 2000, which held that Mr Hugh Aitken's conditions of osteoarthrosis of the right hip and pleural plaques were not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986, is varied to find that: (i) that part of the decision under review concerning the condition of pleural plaques, by agreement of the parties, is set aside, and in substitution, the condition of pleural plaques is accepted as a war-caused disability; and (ii) that part of the decision under review concerning the condition of osteoarthrosis of the right hip is affirmed. The matter is remitted to the Repatriation Commission for assessment of Mr Aitken's entitlements to pension pursuant to the legislation.
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' Affairs - entitlement and assessment matter - whether osteoarthrosis of the right hip war-caused - Respondent's decision regarding osteoarthrosis of the right hip affirmed - Respondent concedes pleural plaques as war-caused – remitted for assessment of entitlement to pension.

Veterans' Entitlements' Act 1986 ss 9, 120(4) and 120B

Repatriation Medical Authority, Statement of Principles concerning Osteoarthrosis, Instrument No.42 of 1998
Repatriation Medical Authority, Statement of Principles concerning Osteoarthrosis, Instrument No.20 of 1999
Repatriation Medical Authority, Statement of Principles concerning Osteoarthrosis, Instrument No.82 of 2001

Connors v Repatriation Commission (2000) 59 ALD 61
Harris v Repatriation Commission (2001) 62 ALD 174
Harris v Repatriation Commission (2001) 62 ALD 161
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Williams [2001] FCA 1195

REASONS FOR DECISION

7 November 2001 Ms G Ettinger Senior Member Dr M E C Thorpe Member Mr A Limbury Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission of 28 July 1999 (T11), which found that the Applicant, Mr Hugh Aitken's conditions of localised osteoarthritis of the right hip and pleural plaques were not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"). That decision was affirmed by the Veterans' Review Board on 20 January 2000 (T15).

At the Tribunal hearing, Mr Aitken was represented by Mr B Winship of Rockliffs Solicitors, and the Respondent was represented by an advocate of the Department of Veterans' Affairs, Ms G Pacey. Oral evidence was given by the Applicant, Mr Aitken, and Dr M Benanzio, Orthopaedic Surgeon.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") as Exhibit R1, and the following further exhibits:
ITEM DATE…

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 Aitken and Repatriation Commission

Details

AGLC: Aitken and Repatriation Commission [2001] AATA 921
Case: [2001] AATA 921
Decision Date: 7 November 2001

CaseChat Overview and Summary

The matter of Aitken and Repatriation Commission involved a dispute regarding Mr Aitken's entitlement to a pension under the Veterans' Entitlements Act 1986. Mr Aitken, a former serviceman, sought a determination that his conditions of osteoarthrosis of the right hip and pleural plaques were war-caused and therefore compensable. The Administrative Appeals Tribunal was tasked with reviewing the decision of the Repatriation Commission and the Veterans' Review Board, which had rejected Mr Aitken's claims.

The primary legal issue before the Tribunal was whether Mr Aitken's conditions were war-caused within the meaning of the Veterans' Entitlements Act 1986. Specifically, the Tribunal had to determine if the osteoarthrosis of the right hip and pleural plaques were caused or aggravated by Mr Aitken's war service, as required by section 9 of the Act. The Tribunal also considered the applicable statements of principles issued by the Repatriation Medical Authority, which provided guidance on the connection between certain conditions and war service.

In reaching its decision, the Tribunal noted that while Mr Aitken had provided detailed evidence of his service and the conditions he suffered, the Tribunal could not, on the balance of probabilities, accept his account of the aggravation of his osteoarthrosis of the right hip during his service on board HMAS Brisbane. The Tribunal was not satisfied that the claimed incidents aboard the ship had caused or materially contributed to the condition. However, the Tribunal accepted that Mr Aitken's pleural plaques were war-caused, as agreed by the parties. Consequently, the Tribunal varied the decision of the Repatriation Commission to acknowledge the war-caused nature of the pleural plaques, while affirming the rejection of the claim regarding the osteoarthrosis of the right hip.

The Tribunal's decision resulted in the condition of pleural plaques being recognised as a war-caused disability, while the claim concerning the osteoarthrosis of the right hip was dismissed. The matter was remitted to the Repatriation Commission for reassessment of Mr Aitken's entitlement to pension in light of the Tribunal's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The date of effect should the claim be successful, and as agreed by the parties, was 20 July 1999. EVIDENCE BEFORE THE TRIBUNALmr j aitken - the applicant Mr Aitken, whose date of birth was 2 October 1943, gave oral evidence before the Tribunal. Mr Aitken told the Tribunal that he served in the Royal Australian Navy ("the Navy") in various capacities from 1961 to 1981. His periods of operational and eligible war service were listed in the T-documents. The relevant period for purposes of this matter was the eligible service served from 7 December 1972 to 29 September 1981. The period during which Mr Aitken claimed that his condition of osteoarthrosis of the right hip was aggravated within the terms of the legislation, was aboard HMAS Brisbane, where he served for approximately a two year period at sea between 1976 and 1979. Mr Aitken told the Tribunal that he had a motor vehicle accident at midnight on 3 October 1969, a head-on collision with a vehicle which had been on the wrong side of the road. Mr Aitken described the accident, explaining how severe it had been, and stated that it had destroyed his career, interfering with the plans he had to be at sea. He said that after lengthy medical interventions, he had been transferred to the naval police, but that because he did not like that work, he was finally recategorised and was able to return to sea. Mr Aitken described his time on HMAS Brisbane in early 1972, explaining that the ship was a destroyer, and had tight stability so that the guns could be used to maximum efficiency. This, however, rendered it very rough and uncomfortable, and being a Petty Officer, he had to supervise in the boiler rooms which meant he often had to be up and down four levels of steel ladders. He gave evidence of having injured himself and having two weeks off work; however there was no record of this. Mr Aitken explained that no records were kept of minor ailments, even having stitches was not considered sufficiently important to record, he said. He said that on other occasions, when he felt pain, he would simply take analgesics and lie down till it eased off. He said that he had no pain at all until the incidents on HMAS Brisbane which he described as being smashed onto the deck in heavy weather,. Mr Aitken stated that following those incidents the pain was virtually present all the time. Mr Aitken said that he transferred to HMAS Sydney, an aircraft carrier, which he found very rewarding. The structure was more stable and the ladders were easier to manoeuvre, he said. Mr Aitken said that he spent two years at sea between 1976 and 1979. He said that he was "fit for all sea duties" when he went back, and was happy about that. He said that unless he did "something stupid", he was fine, although he always experienced pain, aching and discomfort when it rained. Mr Aitken also said that during that period he was aboard HMAS Brisbane, and when the weather was rough, it affected his hip. He said that it felt like his legs were being driven up inside him. Mr Aitken said that he could carry out all the duties, climbing up and down and "doing the rounds", checking everything, even though some pain resulted from those activities. He said that at times, however, it was so rough that he was caught up and smashed back onto the deck on several occasions. After some incidents of that he experienced pain going up and down the ladders.

Decision

Reasons for decision

As the Tribunal could not, on the balance of probabilities, accept Mr Aitken's version of events with regard to the aggravations of his osteoarthrosis of the right hip on board HMAS Brisbane in the period between 1976 and 1979, his claim that these aggravations and the worsening of his osteoarthrosis right hip was war-caused could not be upheld. Therefore the decision of the Tribunal was as follows.DECISION The Administrative Appeals Tribunal determines that the decision under review of the Repatriation Commission dated 28 July 1999 as affirmed by the Veterans' Review Board on 20 January 2000, which held that Mr Hugh Aitken's conditions of osteoarthrosis of the right hip and pleural plaques were not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986, is varied to find that:(i) that part of the decision under review concerning the condition of pleural plaques, by agreement of the parties, is set aside, and in substitution, the condition of pleural plaques is accepted as a war-caused disability; and (ii) that part of the decision under review concerning the condition of osteoarthrosis of the right hip is affirmed.

Ratio Decidendi

Legal Principle Established

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