Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 901
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2856
VETERANS’ AFFAIRS DIVISION ) Re EDWARD CLARKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date 16 December 2011
Place Moruya, NSW; decision delivered in Canberra
Decision The decision under review is affirmed
….......................[sgd]................................
Professor RM Creyke, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – eligible defence service – whether osteoarthrosis both ankles and knees defence-caused – clinical onset– Statement of Principles, Instrument No 12 of 2010, Osteoarthritis – Instrument No 32 of 2005, Osteoarthrosis
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 5Q, 68, 70, 120, 120B.
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
16 December 2011 Professor RM Creyke, Senior Member
1. Mr Edward Clarke, who is 77 years of age, served in the Royal Australian Air Force for two periods: from 12 November 1951 to 11 November 1957; and from 12 December 1958 to 1 March 1978. The period from 7 December 1972 to 1 March 1978 was eligible defence service under the Veterans’ Entitlements Act 1986 (Cth) (Act) section 68(1).
2. On 23 September 2008, Mr Clarke applied for pension in respect of a number of conditions including osteoarthrosis of both ankles and both knees. On 27 April 2009, the Repatriation Commission (Commission) rejected the claim.
3. On review on 11 May 2010, the Veterans’ Review Board affirmed the decision of the Commission.
4. On 12 July 2010, Mr Clarke sought further review by the Tribunal. The matter was heard in Moruya, New South Wales on 29 November 2011. The decision was delivered in Canberra, ACT.
Background
5. Mr Clarke said that during his service in the period 1958 and 1978, between August 1972 and February 1973, he was posted to France as part of a team to investigate whether radar systems made in France would be suitable for Sydney airport. For the most part he was based at the premises of the Australian Air Attaché in Paris.
6. In December 1972 Mr Clarke, who was a Warrant Officer, and two other non-commissioned officers, travelled to the city of Brest to view the factory where the radar system was produced.
7. On return from Brest, Mr Clarke was travelling on a small 2 engine plane, which he observed as being overloaded. The weather was cloudy, cold, and windy, and there was sleet. During take-off, the plane had reached 200 km/hour when it hit a wet patch, slewed off the runway, ploughed through a water canal or trench, and ended up in an adjacent field some 100 yards from the tarmac. The incident caused Mr Clarke and other passengers to be flung around.
8. Mr Clarke was strapped in, but he was thrown forward and ended up with his knees hard up against the seat in front of…
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- Clarke and Repatriation Commission [2011] AATA 901
- Case
- [2011] AATA 901
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court centred on the causal link between Clarke's service and his osteoarthrosis, and whether it met the criteria outlined in the relevant legislative framework and Instruments, namely the Veterans' Entitlements Act 1986 and the Statements of Principles concerning osteoarthritis and osteoarthrosis. Specifically, the Court needed to determine whether the osteoarthrosis in Clarke's ankles and knees was both caused by his service and had a clinical onset during his service. The Court also considered whether the AAT had appropriately applied the law in making its decision.
The Court found that the AAT had correctly applied the principles of statutory interpretation and the relevant legislative provisions in reaching its decision. The Court held that the evidence did not establish that Clarke's osteoarthrosis was caused by his service or that it had a clinical onset during his service. The Court emphasised the importance of clinical onset in the context of service-connected conditions and noted that the AAT had appropriately weighed the evidence and made findings in accordance with the law. As a result, the Court found no error in the AAT's decision and affirmed the decision under review.
Orders
Orders of the court
The decision under review is affirmed
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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