Bowser and Repatriation Commission - [2008] AATA 506

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 506
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q 2006/00526

VETERANS’ APPEALS DIVISION )

Re GORDON BOWSER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member
Date18 June 2008
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review, and substitutes the decision that:

(i) the condition of sleep apnoea is a war-caused condition within the meaning of section 8 of the Veterans Entitlement Act 1986;

(ii) Mr Gordon Bowser is entitled to receive a pension for incapacity associated with this condition with effect from and including 18 July 2005; and

The matter is remitted to the Repatriation Commission for the assessment of the pension.

..............[Sgd]................................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veteran’s Entitlements – disability pension – veteran suffers from condition of sleep apnoea – sleep apnoea satisfies statement of principles – sleep apnoea occurred during war-time service – veteran exposed to cramped sleeping conditions and irregular sleeping patterns during Korean War – sleep apnoea is a war caused condition – decision under review set aside.
Veterans Entitlements Act 1986 (Cth) – ss 9, 13, 120, 120A
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398
RepatriationCommission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

18 June 2008 Dr P McDermott, RFD, Senior Member

INTRODUCTION
1.      Mr Gordon Bowser (“the veteran”) saw frontline service in the Korean War. I have to decide whether the condition of sleep apnoea suffered by the veteran is attributable to his service in the Korean War.
SERVICE
2.      The veteran served with the Australian Army in World War II and in the Korean War. He had two periods of operational service in Korea (2 August 1950 to 15 July 1954; 20 March 1954 to 4 April 1955).
PRIOR DECISIONS
3.      On 18 October 2005 the veteran lodged a claim with the Repatriation Commission, for a disability pension for sleep apnoea.
4.      On 15 November 2005 the Repatriation Commission determined that the sleep apnoea condition of the veteran was not related to his service[1].
[1] T2.
5.      On 17 May 2006 the Veterans’ Review Board affirmed the decision of the Repatriation Commission.
LEGISLATIVE FRAMEWORK
6. Section 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides for when an injury or disease is taken to be war-caused. The provision applies where “the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
7. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
8. As the veteran has performed operational service, the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
9. The Act provides that where…

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 Bowser and Repatriation Commission

Details

AGLC: Bowser and Repatriation Commission [2008] AATA 506
Case: [2008] AATA 506
Decision Date: 18 June 2008

CaseChat Overview and Summary

In the case of Bowser and the Repatriation Commission, the primary issue was whether the applicant's condition of sleep apnoea was a war-caused condition that entitled him to a disability pension under the Veterans Entitlements Act 1986. Mr Bowser, a veteran who served in the Korean War, contended that his sleep apnoea was a result of the war-time conditions he endured, specifically the cramped sleeping conditions and irregular sleeping patterns. The Federal Court was tasked with determining the validity of Mr Bowser’s claim and whether his condition met the statutory criteria for a war-caused disability.

The court examined the relevant provisions of the Veterans Entitlements Act 1986, particularly sections 8, 9, and 13, to assess whether Mr Bowser's sleep apnoea could be classified as a war-caused condition. It also considered the statement of principles concerning sleep apnoea and whether it satisfied the requirements for such a classification. The court had to ascertain if the evidence provided by Mr Bowser was sufficient to establish a causal link between his service during the war and the onset of his sleep apnoea. The legal issue thus centred on the interpretation and application of the statutory provisions and principles to the facts of Mr Bowser’s case.

In rendering its decision, the court concluded that Mr Bowser's condition of sleep apnoea was indeed a war-caused condition, as it satisfied the statement of principles and was linked to his war-time service. The court held that the cramped sleeping conditions and irregular sleeping patterns during the Korean War contributed to the development of sleep apnoea, thus qualifying it as a war-caused condition under the Act. The court found the decision of the Repatriation Commission to be flawed and set it aside, substituting it with a decision that Mr Bowser was entitled to a pension for incapacity associated with his sleep apnoea. The matter was remitted back to the Commission for reassessment of the pension amount.

The court's final order was that the decision under review was set aside, and it was determined that Mr Bowser's condition of sleep apnoea was a war-caused condition within the meaning of the Act. Mr Bowser was entitled to receive a pension for incapacity associated with this condition, effective from 18 July 2005. The matter was remitted to the Repatriation Commission for the assessment and payment of the pension.

Orders

Orders of the court

The Tribunal sets aside the decision under review, and substitutes the decision that:

(i) the condition of sleep apnoea is a war-caused condition within the meaning of section 8 of the Veterans Entitlement Act 1986;

(ii) Mr Gordon Bowser is entitled to receive a pension for incapacity associated with this condition with effect from and including 18 July 2005; and

The matter is remitted to the Repatriation Commission for the assessment of the pension.

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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