Clements and Repatriation Commission - [2004] AATA 319

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 319
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1716

VETERANS' APPEALS DIVISION )

Re

Edward Clements

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President
Date26 March 2004
PlaceSydney

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

(1)   the Applicant’s Specific Phobia, in Partial Remission, Situational

Type, is war-caused as defined in s 9 of the Veterans’ Entitlement Act 1986;

(2)   the Respondent is liable pursuant to s 13 of the Act for any incapacity arising from that condition with effect from 8 August 2001;

(3)   the assessment of the rate at which any pension is payable to the Applicant is remitted to the Repatriation Commission.

.............................................
RP Handley
Deputy President

CATCHWORDS
VETERANS’ ENTITLEMENT – Comcare – disability pension – whether Applicant’s condition of Specific Phobia in Partial Remission, Situational Type is war-caused – claustrophobia – no Statement of Principles – necessity that a hypothesis connecting the injury claimed and the Applicant’s operational service be established to the reasonable satisfaction of the Tribunal – held three stressful incidents which occurred during operational service had a cumulative effect on his claimed condition – decision under review set aside – condition is war-caused – Respondent is liable for the condition – assessment of rate of pension to be made by Repatriation Commission.
Veterans’ Entitlement Act 1986 ss 6, 9(1), 13(1), 21A, 22, 23, 24, 120(1), 120(3), 120(4), 120A
Bushell v Repatriation Commission 175 CLR 408
Byrne v Repatriation Commission (1993) 177 CLR 564
Spencer v Repatriation Commission 118 FCR 453
REASONS FOR DECISION

26 March 2004 Mr RP Handley, Deputy President

Summary

1.      The Applicant, Edward Clements, who is aged 66, served in the Australian Army from 1955 to 1961. He claims that during his operational service he experienced a number of stressful events including a collision while on the troop ship “New Australia” and a shooting while in Singapore. On 8 November 2001, he lodged a claim for disability support pension and treatment for incapacity from skin problems, hearing loss with tinnitus, feet problems, post traumatic stress disorder (“PTSD”), alcohol dependence, hypertension and impotence.
2.      On 5 March 2002, a delegate of the Repatriation Commission (“the Respondent”) accepted Mr Clements’ claims for solar keratosis, bilateral sensorineural hearing loss, bilateral tinnitus and impotence effective from 8 August 2001. The delegate denied Mr Clements’ claims for bilateral acquired hallux valgus, PTSD, alcohol dependence and hypertension. The Veterans’ Review Board (“VRB”), on a review, set aside the delegate’s decision with regard to bilateral acquired hallux valgus, substituting a decision that this condition was war-caused. The VRB affirmed the delegate’s decision to refuse the conditions of PTSD, alcohol dependence and hypertension. This is the decision to be reviewed by the Tribunal.
Background
3.      Mr Clements was born on 28 December 1937 and is aged 66. He served in the Australian Army from 1 November 1955 to 31 October 1961.   The parties agree that…

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 Clements and Repatriation Commission

Details

AGLC: Clements and Repatriation Commission [2004] AATA 319
Case: [2004] AATA 319
Decision Date: 26 March 2004

CaseChat Overview and Summary

Clements commenced proceedings against the Repatriation Commission, seeking a declaration that his condition of Specific Phobia, in Partial Remission, Situational Type, commonly known as claustrophobia, was caused by his service in the armed forces. The Commission had previously determined that his condition was not war-caused, and therefore, it was not liable for any incapacity arising from the condition. The matter was heard in the Administrative Appeals Tribunal (AAT), and on appeal, the parties sought a review of the AAT’s decision. The central issue before the court was whether the applicant's condition of Specific Phobia, in Partial Remission, Situational Type, was caused by his operational service in the armed forces. Specifically, the court had to determine whether a hypothesis connecting the injury claimed and the applicant’s operational service could be established to the reasonable satisfaction of the Tribunal.

The court considered the evidence presented, including the applicant's account of three stressful incidents that occurred during his operational service, and the expert evidence provided. It held that the cumulative effect of these incidents had a significant impact on the applicant's claimed condition. The court found that the evidence was sufficient to establish a hypothesis that the applicant's condition was caused by his service to the reasonable satisfaction of the Tribunal. Accordingly, the court set aside the decision of the AAT and declared that the applicant’s condition was war-caused as defined in section 9 of the Veterans’ Entitlement Act 1986. The court further held that the Repatriation Commission was liable for any incapacity arising from that condition with effect from 8 August 2001. The assessment of the rate of any pension payable to the applicant was remitted to the Repatriation Commission.

The court's decision was based on a thorough analysis of the evidence and the applicable legal principles. It held that the applicant had established that his condition was caused by his service in the armed forces, and therefore, the Repatriation Commission was liable for any incapacity arising from that condition. The court's decision provides important guidance for similar cases in the future, particularly in relation to the burden of proof required to establish a war-caused condition.

Orders

Orders of the court

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

(1) the Applicant’s Specific Phobia, in Partial Remission, Situational

Type, is war-caused as defined in s 9 of the Veterans’ Entitlement Act 1986;

(2) the Respondent is liable pursuant to s 13 of the Act for any incapacity arising from that condition with effect from 8 August 2001;

(3) the assessment of the rate at which any pension is payable to the Applicant is remitted to the Repatriation Commission.

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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