CLEGG and REPATRIATION COMMISSION - [2011] AATA 410

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 410
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3297

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL CLEGG

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Date17 June 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

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

CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Defence service with Royal Australian Navy – Application of Statements of Principles – Diagnosis and clinical onset of emphysema – Commencement of smoking during defence service – Temporal but no causal connection of smoking to service – Emphysema not defence-caused – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5, 14, 68, 70, 120, 120B
Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Tuite (1993) 17 AAR 158
REASONS FOR DECISION

17 June 2011 Mr R G Kenny, Senior Member

BACKGROUND
1. Michael Clegg served with the Royal Australian Navy (“the RAN”) from 13 November 1973 until 2 October 1979. On 12 June 2009, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for “emphysema” which he contended was related to his RAN service. On 10 February 2010, the respondent rejected the claim. On 12 July 2010, the Veterans’ Review Board (“the Board”) affirmed that decision.
SERVICE, ISSUES AND LEGISLATION
2. Mr Clegg’s service with the RAN is a period of defence service in accordance with s 68 of the Act. The standard of proof for determining diagnostic matters and issues of causation for defence service are set out in s 120(4) of the Act. This provision requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities.[1] The application of that provision to matters of causation is affected by the terms of s 120B of the Act. This provides that, where a relevant Statement of Principles (“SoP”) has been published by the Repatriation Medical Authority (“RMA”), a decision-maker may be reasonably satisfied that a condition is defence-caused only if the SoP upholds the contention that the condition is, on the balance the probabilities, connected with that service.
[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
3. Subsection 70(1) of the Act provides that, where a member of the RAN is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term “disease” is defined in s 5D(1) of the Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. I am satisfied that the term extends to the condition of emphysema. Subsection 70(5) of the Act sets out criteria of causation. Accordingly, the disease is taken to be defence-caused if it…

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 CLEGG and REPATRIATION COMMISSION

Details

AGLC: CLEGG and REPATRIATION COMMISSION [2011] AATA 410
Case: [2011] AATA 410
Decision Date: 17 June 2011

CaseChat Overview and Summary

The matter before the court involved a claimant, Clegg, and the Repatriation Commission, with the dispute centering on the eligibility of Clegg for benefits under the Veterans' Entitlements Act 1986. Clegg sought to establish a link between his emphysema and his service in the Royal Australian Navy. The Tribunal was tasked with determining whether Clegg's emphysema was caused by his service, specifically whether there was a sufficient causal connection between his military service and the onset of his condition.

The primary legal issue was whether Clegg's emphysema was caused by his military service, given that he began smoking during his service, a known risk factor for the disease. The court had to consider whether the smoking during service was temporally connected to the onset of the emphysema and whether it was also causally connected. The court was required to apply relevant Statements of Principles and determine if the evidence supported a finding that the emphysema was attributable to Clegg's service.

The Tribunal, after reviewing the evidence and applicable legal principles, concluded that while there was a temporal connection between Clegg's smoking and his service, there was insufficient evidence to establish a causal link between his service and the onset of his emphysema. The Tribunal found that the emphysema was not caused by Clegg's military service, thus affirming the decision under review that Clegg was not entitled to the benefits he sought. The court relied on previous cases such as Repatriation Commission v Smith and Repatriation Commission v Tuite, which emphasised the need for a causal link between service and the claimed condition.

The Tribunal affirmed the decision under review, ruling that Clegg's emphysema was not attributable to his service, and thus he was not entitled to the benefits he sought under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.