Cox and Repatriation Commission - [2008] AATA 642

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 642
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600909

VETERANS’ APPEALS DIVISION )

Re GRAHAME COX

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member
Date23 July 2008
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
.......................[Sgd].......................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Pension – War-caused injury – Whether veteran’s lumbar spondylosis war-caused – Consideration of loads carried or lifted by the veteran – Veteran’s lumbar spondylosis not war-caused – Decision affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 13, 120
Deledio v Repatriation Commission [1998] FCA 391; (1998) 83 FCR 82
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Bull v Repatriation Commission [2001] FCA 1832; (2002) 66 ALD 271
REASONS FOR DECISION

23 July 2008 Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member

1. Mr Grahame Cox, the applicant, suffers from lumbar spondylosis. He says he developed the condition as a result of his war service in Malaya and Borneo in 1961-1963. He has sought compensation under s 13 of the Veterans’ Entitlements Act 1986 (“the Act”). The Repatriation Commission says there is no connection between the applicant’s condition and the circumstances of his war service. Mr Cox has asked the Tribunal to reconsider the claim.
2.      Mr Cox argues his back condition may have its genesis in a trauma to his lumbar spine which he sustained when he fell from the back of a truck while working in the jungle. Alternatively, he says the condition might have resulted from the heavy lifting which he was required to perform in the course of his work in an engineering squadron. In either case, he says, the condition is compensable.
3.      We disagree. For reasons we will explain, we do not accept that the applicant is able to establish a causal link between the circumstances of his service and his current back condition. We have therefore decided to affirm the decision under review.
The background facts
4.      Mr Cox rendered operational service in Malaya and Borneo between 12 October 1961 and 27 May 1963 as a field engineer with 4 Troop, Royal Australian Engineers. His unit worked closely with units in the British Army. The unit undertook a variety of construction and engineering tasks, including road and bridge building and the erection of helicopter landing platforms in remote areas of the jungle. The unit was also occasionally required to undertake patrols through the jungle. These patrols might last for as long as three weeks.
5.      The applicant fell or was thrown from the back of a water truck on a construction site in December 1961. He was knocked unconscious and taken to hospital. A short time later, he developed a condition that the medical evidence suggests was probably scrub typhus. He complained of lower-back pain and other symptoms during the course of his treatment.…

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 Cox and Repatriation Commission

Details

AGLC: Cox and Repatriation Commission [2008] AATA 642
Case: [2008] AATA 642
Decision Date: 23 July 2008

CaseChat Overview and Summary

The case of Cox and Repatriation Commission involved a claim by the applicant, Cox, for a war-caused injury pension under the Veterans’ Entitlements Act 1986 (Cth). Cox asserted that his lumbar spondylosis was caused by his service during the war, specifically due to the physical demands of carrying and lifting heavy loads. The dispute was heard by the Administrative Appeals Tribunal, which upheld the Repatriation Commission’s decision to deny Cox’s claim for a war-caused injury pension.

The primary legal issue before the Tribunal was whether Cox's lumbar spondylosis was caused by his war service. The Tribunal needed to consider the evidence presented regarding the physical demands of Cox’s duties during the war, including the weight of the loads he carried or lifted. The Tribunal also had to examine relevant case law, such as Deledio v Repatriation Commission and East v Repatriation Commission, to determine the appropriate standard of proof and the relevance of the physical demands of military service in assessing war-caused injuries.

The Tribunal examined the evidence provided by Cox and the medical reports. It concluded that Cox’s lumbar spondylosis was not caused by his war service. The Tribunal found that while Cox's military duties involved carrying and lifting heavy loads, this alone was not sufficient to establish a causal link between his service and the lumbar spondylosis. The Tribunal emphasised that the applicant must demonstrate a direct causal link between the injury and the war service, a standard upheld in previous cases such as Bull v Repatriation Commission. Based on this reasoning, the Tribunal affirmed the decision of the Repatriation Commission to deny Cox’s claim for a war-caused injury pension.

The Tribunal’s decision was affirmed, and Cox’s claim for a war-caused injury pension was denied. The Tribunal held that Cox had not met the required standard of proof to establish that his lumbar spondylosis was caused by his war service.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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