Barnes and Repatriation Commission - [2000] AATA 646

DECISION AND REASONS FOR DECISION [2000] AATA 646

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/1124

VETERANS' APPEALS DIVISION       )
           Re      NEVILLE BARNES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION AND ORAL REASONS FOR DECISION

Tribunal Miss WJF Purcell (Senior Member) Capt ET Keane, OAM, RAN (Rtd) (Member) Dr KP Kennedy, OBE (Member)

Date3 August 2000
PlaceBrisbane

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
  (Sgd) WJF Purcell
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether veteran's osteoarthrosis of both knees was war caused – whether veteran sustained the requisite "trauma" to his knees during service.
Veterans' Entitlement Act 1986 s 120(1)
Statement of Principles – Instrument No 71 of 1995

ORAL REASONS FOR DECISION

3 August 2000 Miss WJF Purcell (Senior Member) Capt ET Keane, OAM, RAN Rtd (Member) Dr KP Kennedy, OBE (Member)

This is an application for review of a decision of a delegate of the respondent (the Commission) of 8 August 1997, which determined that osteoarthrosis at both knees and metatarsalgia of both feet were not war caused for the purposes of the Veterans' Entitlement Act 1986 (the Act).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with an exhibit tendered by the applicant. Mr Peter Johns represented the applicant, who gave oral evidence, and Mr Morison, a Departmental Advocate, appeared for the Commission. The applicant, who is in receipt of disability pension at 40 per cent of the general rate, lodged a claim for disability pension for the two conditions on 16 June 1997. At the commencement of the hearing the applicant's representative informed the Tribunal that the applicant was proceeding only in relation to the condition osteoarthrosis of both knees.
The applicant has rendered overseas service and the standard of proof is that of reasonable hypothesis in accordance with section 120(1) of the Act, which as far as is relevant for the purposes of this review provides:
"120 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"

The claim was lodged after 1 June 1994 and the appropriate Statement of Principles is Instrument No 71 of 1995, as amended by Nos 336 of 1995 and 352 of 1995.
The applicant contends that he satisfies clause 2(b)(vi) of the Statement of Principles, which reads:

"(vi) Suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis;"
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.

Continue reading Barnes and Repatriation Commission

Details

AGLC: Barnes and Repatriation Commission [2000] AATA 646
Case: [2000] AATA 646
Decision Date: 3 August 2000

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involves Neville Barnes, the applicant, and the Repatriation Commission, the respondent. Barnes, a former Australian Navy serviceman, is seeking a review of the Commission's decision that his osteoarthrosis of both knees was not war-caused, and thus not eligible for a disability pension under the Veterans' Entitlement Act 1986. The Commission had determined that Barnes' condition did not meet the criteria set out in Instrument No 71 of 1995, specifically clause 2(b)(vi) regarding trauma to the relevant joint before the onset of osteoarthrosis. The AAT was required to decide whether the injuries Barnes sustained during his service met the criteria for "trauma" as defined in the Statement of Principles.

Barnes argued that his claim was substantiated by either a laceration to his right knee or by the knocks and bumps he experienced during his service. The Commission, however, contended that the injuries were insufficient to satisfy the definition of trauma, and that the symptoms did not manifest until well after his service ended. The Tribunal had to carefully assess the evidence provided by Barnes, including his testimony and medical records, against the statutory criteria for "trauma" and the specific requirements of the Statement of Principles. The Tribunal also considered the case of Spencer v Commonwealth [2000] AATA 319, which provided some guidance on the interpretation of the term "trauma."

The Tribunal concluded that the evidence did not support Barnes' claim that either the laceration or the knocks and bumps constituted "trauma" as defined in the Statement of Principles. The Tribunal found that the laceration did not result in the acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement that lasted for at least one week as required. Additionally, the Tribunal did not find the knocks and bumps to be sufficient to meet the definition of trauma. Therefore, the Tribunal affirmed the Commission's decision, holding that Barnes' condition was not war-caused for the purposes of the Act. The Tribunal's decision was based on a detailed examination of the evidence and the legal criteria applicable to Barnes' claim.

Orders