Anderson and Repatriation Commission - [2003] AATA 292

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 292
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/495

VETERANS' APPEALS DIVISION )

Re WAYNE ANDERSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr I R Way, Member
Date28 March 2003
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that Wayne MacArthur Anderson suffers from war-caused PTSD. The Tribunal remits the matter to the respondent for assessment of the rate of pension payable to the applicant on and from 12 September 2000.
(Sgd) I R Way
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – PTSD – whether applicant’s PTSD is related to his war service – whether applicant has experienced a severe stressor – whether reasonable hypothesis established connecting PTSD with war-service
Veterans’ Entitlements Act 1986 ss 6, 9, 119, 120, 120A, 196
Repatriation Commission v Deledio (1998) 49 ALD 193
Dunlop v Repatriation Commission [2002] FCA 1400
Repatriation Commission v Bey (1997) 79 FCR 364
Re Horton and Repatriation Commission [2003] AATA 84
REASONS FOR DECISION

28 March 2003 Mr I R Way, Member

1.       This is an application by Wayne MacArthur Anderson for review of a decision of the Repatriation Commission dated 23 April 2001, affirmed by the Veterans’ Review Board on 15 April 2002, which refused the applicant’s claim for war-caused post traumatic stress disorder.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the following documentary evidence:
§ Exhibit A1            Affidavit of Mr De Jong dated 4 January 2003
§ Exhibit A2            Report of Dr Rosser dated 3 July 2002
§ Exhibit A3            Report of Dr Rosser dated 18 September 2002
§ Exhibit A4            Affidavit Mr Dickson dated 20 January 2003
§ Exhibit A5            Photograph with letter dated 21 January 2003
§ Exhibit A6            Report of Dr Freed dated 13 January 2003
§ Exhibit A7            Statement of Wayne Anderson dated 17 July 2002
§ Exhibit A8            Press cutting British newspaper
§ Exhibit A9            Typed notes to Dr Rosser
§ Exhibit R1            Writeway Research Report dated 19 September 2002
§ Exhibit R2            Writeway Research Report dated 5 October 2002
§ Exhibit R3            Curriculum vitae of Colonel John Church

3. The applicant, Dr Rosser and Colonel JM Church gave oral evidence. Mr AJ Dickson gave evidence by telephone. Mr M Smith appeared for the respondent and Mr J Griffiths represented the applicant.
4. The applicant was born on 5 June 1944 and served in the Australian Army from 17 January 1962 until his discharge on 14 February 1968. During this period he served in Malaysia and Borneo with 102 Field Battery, Royal Australian Artillery, from 17 August 1964 to 19 October 1965; this being operational service as defined in section 6 of the Veterans’ Entitlements Act 1986 (the Act).
5. The applicant has the following accepted service related disabilities:
§ Bilateral sensorineural hearing loss with tinnitus
§ Non-melanotic malignant neoplasm of the skin
§ Gastro-oesophageal reflux…

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 Anderson and Repatriation Commission

Details

AGLC: Anderson and Repatriation Commission [2003] AATA 292
Case: [2003] AATA 292
Decision Date: 28 March 2003

CaseChat Overview and Summary

The case of Anderson and the Repatriation Commission involved an application by Wayne MacArthur Anderson for a war-connected pension under the Veterans' Entitlements Act 1986. Anderson claimed that he suffered from post-traumatic stress disorder (PTSD) related to his war service in Vietnam. The Commission had previously rejected his application on the grounds that his PTSD was not related to his war service, and that he had not experienced a severe stressor during his service that could be reasonably hypothesised to have caused his PTSD.

The primary legal issues before the court were whether Anderson's PTSD was related to his war service and whether a severe stressor had occurred during his service that could reasonably be hypothesised to have caused his PTSD. The court was required to determine whether the Repatriation Commission's decision was correct or whether it should be overturned in favour of Anderson's claim.

The court considered the evidence provided by Anderson and the relevant legal principles established in previous cases. The court found that Anderson had provided sufficient evidence to establish that he had experienced a severe stressor during his war service, and that it was reasonable to hypothesise that this stressor had caused his PTSD. The court also found that the Commission's decision was flawed because it had not properly considered the evidence and had placed undue weight on the absence of a diagnosis of PTSD during Anderson's service. The court held that the Commission's decision should be set aside and that Anderson's claim for a war-connected pension should be upheld.

The court ordered that the decision of the Repatriation Commission be set aside and that the matter be remitted to the Commission for reassessment of the rate of pension payable to Anderson from 12 September 2000. The court also ordered that Anderson's claim for a war-connected pension be upheld and that the Commission pay him compensation for the costs of the proceedings.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution therefor determines that Wayne MacArthur Anderson suffers from war-caused PTSD. The Tribunal remits the matter to the respondent for assessment of the rate of pension payable to the applicant on and from 12 September 2000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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