DECISION AND REASONS FOR DECISION [2002] AATA 208
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/106
VETERANS' APPEALS DIVISION
Re: DAVID CROCKETT
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mrs J.R. Dwyer, Senior Member
Mr P.J. Lindsay, Senior Member
Date: 28 March 2002
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(Sgd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS – whether lumbar spondylosis, cervical spondylosis and chronic airflow limitation are war-caused diseases – diagnosis of conditions to be by reference to medical criteria rather than by reference to definition in a Statement of Principles – whether raised hypotheses meet the templates in the SoPs – difficulty when veteran has given inconsistent smoking histories – decision affirmed
Veterans' Entitlements Act 1986 ss 9, 13, 120(1) and (3), 120A(3), 196B(2) and (14)
Bushell v Repatriation Commission (1992) 175 CLR 408
Benjamin v Repatriation Commission, [2001] FCA 1879
Deledio v Repatriation Commission (1998) 47ALD 261
Gorton v Repatriation Commission [2001] FCA 1194
Repatriation Commission v Deledio (1988) 83 FCR 82
Harris v Repatriation Commission (2000) 62 ALD 174
Harris v Repatriation Commission (2000) 62 ALD 161
Repatriation Commission v Bey (1997) 47 ALD 481
Arnott v Repatriation Commission (2001) 32 AAR 445 (2001) 63 ALD 575
Budworth v Repatriation Commission (2001) 63 ALD 422
Re Paine and Repatriation Commission [2001] AATA 489
Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998)
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
28 March 2002 Mrs J.R. Dwyer, Senior Member
Mr P.J. Lindsay, Senior Member
This is an application for review of a decision made by the Repatriation Commission on 14 August 1996. The Veterans' Review Board affirmed that decision on 12 December 2000. The Repatriation Commission rejected Mr Crockett's claim to have lumbar spondylosis, cervical spondylosis and chronic airflow limitation accepted as war-caused conditions under the Veterans' Entitlements Act 1986 ("the Act").
Mr D. Hyde of Counsel appeared for the applicant. Mr K. Rudge, an advocate with the Department of Veterans' Affairs ("DVA"), appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Crockett gave evidence. Mr Hadley, an orthopaedic surgeon, gave telephone evidence on his behalf. Mr Dooley, an orthopaedic surgeon, gave evidence on behalf of the repondent.
Mr Crockett, who was born on 25 October 1949, served in the Royal Australian Navy from 5 January 1966 to 16 January 1974.
The following periods of his service, being voyages to Vietnam, constitute operational service under the Act:
21 May 1968 - 13 June 1968
13 November 1968 – 28 November 1968
8 February 1969 – 25 February 1969
8 May 1969 – 30 May 1969
17 November 1969 – 5 December 1969
16 February 1970 – 5 March 1970
Mr Crockett also has eligible service under the Act from 7 December 1972 to 16 January 1974.
Mr Crockett claims that he has cervical spondylosis and lumbar spondylosis…
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CaseChat Overview and Summary
The primary legal issue before the court was whether Mr Crockett's conditions of cervical and lumbar spondylosis could be classified as war-caused injuries or diseases under the Act. The court needed to examine whether these conditions arose from or were attributable to his operational service. This required a detailed analysis of the connection between the claimed conditions and the specific incidents during his service. Additionally, the court had to consider the standard of proof required under the legislation to establish the requisite connection between the claimed conditions and Mr Crockett's service.
The court's reasoning involved a thorough examination of the definitions and criteria set out in the Act, particularly sections 9 and 13. The court applied the principles outlined in Bushell v Repatriation Commission to assess the causal and temporal connection between Mr Crockett's service and the claimed conditions. The court determined that for a condition to be considered war-caused, it must result from an occurrence during operational service or arise out of or be attributable to eligible war service. The court also considered the standard of proof required, which is satisfaction beyond reasonable doubt. After reviewing the evidence, the court concluded that there was insufficient evidence to establish a reasonable hypothesis connecting the claimed conditions with Mr Crockett's service.
As a result, the court held that Mr Crockett's claims for pension based on cervical and lumbar spondylosis did not meet the criteria for war-caused injuries or diseases under the Act. Consequently, the court dismissed Mr Crockett's claims.
Orders
Orders of the court
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Background
Background to the litigation
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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