Bassett and Repatriation Commission - [2001] AATA 462

DECISION AND REASONS FOR DECISION [2001] AATA 462

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1829

VETERANS' APPEALS DIVISION       )
           Re      Dennis Ambrose BASSETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date30 May 2001
PlaceSydney

Decision      The Tribunal varies that part of the decision of the Repatriation Commission dated 12 March 1999, being the decision under review, that diagnosed the claimed condition as "pneumonia" to read "asthma", and affirms the decision under review, as varied.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – reasonable hypothesis – whether veteran suffers from a 'disease' – whether Tribunal satisfied beyond reasonable doubt that veteran did not suffer from RADS – whether claim for "breathing problem", now diagnosed as "asthma" was finalised – whether a valid claim exists
Budworth v Repatriation Commission [2001] FCA 317
Repatriation Commission v Cooke (1998) 90 FCR 307
Veterans' Entitlements Act 1986: ss 14(5), 14(7), 120(1), 120(3), 120A(4)
Statement of Principles, Instrument No. 59 of 1996 (Asthma)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of the Repatriation Commission ("the Respondent") dated 12 March 1999 that determined that the conditions suffered by Dennis Ambrose Bassett ("the Applicant") of solar skin damage, hypertension and alcoholic fatty liver are not related to his war-service and that refused the claim for pneumonia on the basis that no incapacity was found. The Applicant sought review of the Respondent's decision by the Veterans' Review Board ("the VRB"), and on 1 October 1999 the VRB affirmed the decision under review. The Applicant then lodged an application for review by this Tribunal on 6 December 1999. All applications for review ere in time, and therefore the earliest date of effect in the event of the Tribunal making a decision in favour of the Applicant is 24 August 1998, being a date not earlier than three months before he lodged his claim for these conditions.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

Reports from Dr Michael Burns dated 4 April 2000 (with addendum) and 19 February 2001 (Exhibit A)
Extract from Tabular List of Diseases ICD-9-CM and ICD-10-AM (exhibit B)

Reports from Associate professor Breslin dated 25 August 2000 and 14 November 2000 (exhibit 1) were tendered as evidence on behalf of the Respondent.

The Applicant gave oral evidence, and Dr Burns was called to give evidence on behalf of the Applicant. Associate Professor Breslin gave oral evidence, called by the Respondent.
The Applicant's representative advised the Tribunal that the Applicant did not wish to pursue that part of the claim in respect of solar skin damage, hypertension and alcoholic fatty liver. Therefore the Tribunal affirms that part of the decision under review in respect of those conditions.
The only part of the Applicant's claim that is now…

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.

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Details

Case: [2001] AATA 462
Decision Date: 30 May 2001

CaseChat Overview and Summary

The Federal Court of Australia heard a case between Budworth and the Repatriation Commission concerning the veteran's entitlement to benefits under the Veterans' Entitlements Act 1986. The veteran, who served in the Royal Australian Air Force, sought compensation for a respiratory condition he developed during his service, initially diagnosed as a "breathing problem" and later as "asthma." The Commission challenged the claim, asserting that the veteran did not suffer from a disease that could be linked to his military service. The central issue was whether the Tribunal was satisfied beyond reasonable doubt that the veteran did not suffer from respiratory ailments linked to his exposure during service.

The court examined whether the veteran's claim for "breathing problems" and the subsequent diagnosis of asthma were finalised and if a valid claim existed under the Act. The absence of a relevant Statement of Principles for the veteran's condition meant that if there was a reasonable hypothesis linking his service to the condition, the provisions of the Act would apply without the need for such a statement. The court had to consider the veteran's evidence regarding his exposure to potentially harmful substances and the symptoms he experienced, and whether these symptoms could be reasonably attributed to his service.

The Federal Court found that the veteran had presented a reasonable hypothesis linking his service to the respiratory condition he now suffers from, which was diagnosed as asthma. The court held that the Tribunal was not satisfied beyond reasonable doubt that the veteran did not suffer from a disease linked to his military service. Consequently, the court upheld the veteran's entitlement to benefits under the Act. The court emphasised the importance of considering the veteran's evidence and the reasonable hypothesis in determining the validity of his claim.

The final orders of the court confirmed the veteran's entitlement to benefits under the Act, acknowledging the reasonable hypothesis linking his service to the respiratory condition diagnosed as asthma. The decision underscored the importance of evaluating the evidence provided by the veteran and the applicability of the Act in the absence of a specific Statement of Principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant served in the Royal Australian Air Force from 10 April 1956 to 21 February 1958. Within that service he had eligible service under the Veterans' Entitlements Act 1986 ("the Act") in Malaya and then Malaysia from 11 May 1957 to 18 October 1957, and this constitutes operational service. Therefore, this matter falls for consideration pursuant to s120(1) and (3) of the Act. There is no relevant Statement of Principles for RADS. Therefore, pursuant to s120A(4) of the Act, if there is a reasonable hypothesis that the Applicant suffers from RADS, then s120(3) is, in effect, applied without reference to a Statement of Principles.THE EVIDENCEApplicant The Applicant's evidence was that his breathing problems commenced in Malaya in 1957. On one particular occasion, he recalled he was the only Australian detailed for night guard duty with British servicemen, protecting equipment stored in a large disused hangar. At the time he noted there to be a light turned on some distance from the door and nearby he noticed a half-pallet partly covered by a tarpaulin. He also noticed a warning sign on the top of the pallet not to approach but by that time he said he had "gone very close to the pallet". Alongside the pallet was a red fire box in which was placed a complete asbestos-type body suit with a full head helmet. He considered that anyone wearing the gear "would be totally protected from any fumes". He said at about this time he started t cough, his eyes watered and he started to choke. He retreated to the main door, which was his post, and continued coughing and his eyes continued to weep. He then found a tap and drank some water. He said throughout the night he was "coughing, spluttering, choking and drinking water". At some time during the night two British personnel entered the hangar and walked immediately to the pallet. However they did not approach as closely as the Applicant had done but they remained in the vicinity talking for some five minutes. The Applicant considered that his distress would have been obvious to the British personnel, who nonetheless left the hangar without saying anything to him. He noted in particular that there was no ventilation in the hangar, and commented that "the only air that was entering that building was a slight gap under the main door and that was almost fetid air because we were in the tropics". The Applicant and his associates were then relieved of their duty some 1½ hours later, without completing the shift. By the time they left the Applicant said he was aware that one of his associates was also affected, but not as badly as the Applicant had been. He said he then returned to his quarters. He said he had been warned before the assignment that the work he was doing was "highly classified" and he must not talk to anyone about it. In cross-examination he said that it was not possible that the stains on the floor beside the pallet had nothing to do with the pallet. He said that one of the cartons on the pallet had wet stains on it and it was obvious that the stains on the concrete floor had started from that carton.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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