Carden and Repatriation Commission - [2008] AATA 780

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 780
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1783

VETERANS' APPEALS DIVISION )

Re BARRIE RAYMOND CARDEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C. Ermert, Member
Date2 September 2008
PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Carden’s conditions of hypertension, ischaemic heart disease, erectile dysfunction, cerebrovascular accident, carotid arterial disease and aortic stenosis are war-caused. The Tribunal remits the matter to the Respondent for determination of the dates of effect of those conditions and the rate of pension to be paid.
(sgd) Conrad Ermert
Member

VETERANS’ AFFAIRS ‑ operational service - diagnosed conditions – four stages of Deledio reasoning - hypothesis connecting conditions with operational service - Statements of Principles ‑ whether hypothesis fits Statement of Principles – credible or reliable evidence - whether satisfied beyond reasonable doubt that conditions were not war-caused – decision set aside.
Veterans’ Entitlements Act 1986
Benjamin v Repatriation Commission [2001] FCA 1879
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinckel (1999) 59 ALD 690)
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
Tunks v Repatriation Commission [2008] FCA 521
REASONS FOR DECISION

2 September 2008 Brigadier C. Ermert, Member

INTRODUCTION
1.      Mr Barrie Carden, the applicant in this case, served in the Royal Australian Navy (RAN) from 1971 to 1977. His service included operational service in Vietnam as a boiler room and engine room watch keeper on board HMAS Vampire (the Vampire) from 21 November 1972 to 26 November 1972. His operational service involved his ship escorting HMAS Sydney (the Sydney) into Vung Tau harbour in the Republic of South Vietnam to off-load stores. The two ships anchored in the harbour while the stores were off-loaded but sailed out to sea during the night as a standard precaution. The ships completed off-loading of the stores on the second day, after which both ships left Vung Tau and the Vampire proceeded to Singapore. This was the last trip made by the Sydney to Vung Tau harbour, the last of the Australian fighting troops having been withdrawn in February of that year.
2.      A moderate smoker and drinker before his operational service, Mr Carden claims that after leaving Vung Tau harbour he started to feel anxiety as a result of the fear that the ship may have been attacked and as a direct consequence his drinking and smoking increased substantially. He says his heavy smoking habit continued until he suffered a heart attack in 2004. His heavy alcohol consumption has continued to the present day.
3.      The Repatriation Commission (the Commission) accepted that Mr Carden’s condition of pleural plaques was war-caused. The Commission granted Mr Carden a disability pension at 80 per cent of the general rate. He…

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 Carden and Repatriation Commission

Details

AGLC: Carden and Repatriation Commission [2008] AATA 780
Case: [2008] AATA 780
Decision Date: 2 September 2008

CaseChat Overview and Summary

The matter involved Mr Carden, who sought a review of a decision by the Repatriation Commission concerning the causation of several medical conditions. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT). The central legal issues were whether the conditions of hypertension, ischaemic heart disease, erectile dysfunction, cerebrovascular accident, carotid arterial disease, and aortic stenosis were war-caused, and whether these conditions warranted a review of the pension rate. The AAT examined the evidence provided by medical experts and the relevant statutory provisions governing the determination of war-caused conditions. In its reasoning, the Tribunal concluded that the evidence supported the finding that Mr Carden's conditions were indeed war-caused. The Tribunal emphasised the importance of a comprehensive assessment of the medical evidence and the statutory criteria for determining war-caused conditions. As a result, the Tribunal set aside the original decision and substituted it with a decision recognising the war-causation of the conditions. The Tribunal also directed the Repatriation Commission to determine the dates of effect of these conditions and the appropriate rate of pension to be paid to Mr Carden.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that Mr Carden’s conditions of hypertension, ischaemic heart disease, erectile dysfunction, cerebrovascular accident, carotid arterial disease and aortic stenosis are war-caused. The Tribunal remits the matter to the Respondent for determination of the dates of effect of those conditions and the rate of pension to be paid.

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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VETERANS' APPEALS DIVISION		)
Re		BARRIE RAYMOND CARDEN