DECISION AND REASONS FOR DECISION [2002] AATA 918
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/408
VETERANS' APPEALS DIVISION
Re: ANTHONY WILLIAM BURLAND
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 11 October 2002
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - post traumatic stress disorder - shots fired - fears for safety - radio conversations - perceived danger to other persons - whether applicant experienced a stressor
Veterans' Entitlements Act 1986 s9, 120(1), 120(3), 120(4), 120A(3)
Bull v Repatriation Commission (2002) 66 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Meehan v Repatriation Commission (2001) 64 ALD 366
O'Neil v Repatriation Commission (2001) 34 AAR 290
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill [2002] FCAFC 192
REASONS FOR DECISION
11 October 2002 G.D. Friedman, Member
This is an application by Anthony William Burland (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 14 March 2001. The VRB varied the decision of a delegate of the Repatriation Commission (the respondent) dated 8 July 1998 in relation to depressive disorder by amending the description of that condition to post traumatic stress disorder (PTSD). The VRB affirmed the decision that PTSD with secondary alcohol abuse and depression, diabetes mellitus, psoriasis and hypertension were not war-caused.
At the hearing of this matter on 1 October 2002 Mr P. Liefman, solicitor, represented the applicant and Mr K. Rudge, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with four exhibits (Exhibits A1-A4) lodged by the applicant and four exhibits (Exhibits R1-R4) lodged by the respondent.
BACKGROUNDThe applicant was born in Melbourne on 1 March 1949. At the age of 15 he commenced an apprenticeship with the Victorian Government Printing Office. He was selected for National Service and joined the Australian Army (the army) at the conclusion of his apprenticeship on 8 July 1970. After basic training at Puckapunyal, he was sent to Queensland where he was trained as a driver with the Royal Australian Army Service Corps. From 16 June 1971 to 8 December 1971 the applicant served in South Vietnam and this period was considered to be operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act). He was discharged on 7 January 1972.
After leaving the army the applicant returned to the printing industry, and in 1978 he undertook a catering course. He took up a position as a cook at a nursing home, then after six months he moved to Phillip Island to care for an ill ex-serviceman. He worked as a cook at a local hotel until his dismissal in 1994.
On 23 March 1998 the applicant made application to the Department of Veterans' Affairs for disability pension for a number of medical conditions. In the course of medical assessment…
Continue reading Burland and Repatriation Commission
Sign in free to access the full text
- AGLC
- Burland and Repatriation Commission [2002] AATA 918
- Case
- [2002] AATA 918
- Decision Date
CaseChat Overview and Summary
The Tribunal examined the applicant’s recollection of three incidents during his service in Vietnam: the shots incident, the helicopter incident, and the artillery incident. The applicant claimed these incidents caused him significant fear and distress, contributing to his later medical conditions. The Tribunal also considered the submissions from the applicant's advocate, who argued that the incidents were plausible and fit within the criteria outlined in relevant Statements of Principles (SoPs). The Tribunal found that while the applicant's recollections were clear and plausible, they did not provide a reasonable hypothesis connecting the claimed conditions to his war service. The Tribunal was satisfied, beyond reasonable doubt, that the evidence did not support a connection between the applicant's medical conditions and his service in Vietnam.
As a result, the Tribunal affirmed the original decision of the Repatriation Commission, denying the applicant's claim for a disability pension. The Tribunal concluded that the applicant's conditions were not war-caused, and thus, he was not entitled to the pension. The final orders of the Tribunal upheld the decision to refuse the pension application.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In oral evidence Lieutenant-Colonel Conant agreed that in Vietnam the regulations and standing orders were not necessarily followed in their entirety at all times.CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact. Mr Liefman submitted that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran, and that the hypothesis fits within the template and is reasonable. He said that the recollection of the applicant in relation to the three incidents was clear and plausible, and that as a consequence, the applicant had feared for his life. Mr Liefman noted that Lieutenant-Colonel Conant had acknowledged that the failure by the New Zealand sergeant to report the shots incident was not remarkable in the circumstances. In relation to the helicopter incident and the artillery incident Mr Liefman stated that, although atmospheric quirks affecting radio transmissions were possible, air to ground communications were not uncommon. He said that in a small command post there was a strong possibility that a switchboard operator would occasionally overhear radio communications from American ground forces and pilots. Mr Liefman referred the Tribunal to O'Neil v Repatriation Commission (2001) 34 AAR 290 in which North J stated in relation to the SoP concerning generalised anxiety disorder at page 292:… It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs.