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Crockett and Repatriation Commission

Crockett and Repatriation Commission

Case [2002] AATA 208 28 March 2002

Jurisdiction

Statutory Interpretation

Standard of Proof

Burden of Proof

Administrative Law

Veterans' Affairs Law

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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…

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 Crockett and Repatriation Commission

Details

AGLC: Crockett and Repatriation Commission [2002] AATA 208
Case: [2002] AATA 208
Decision Date: 28 March 2002

CaseChat Overview and Summary

The case concerns Mr Crockett, who asserts that he suffers from cervical and lumbar spondylosis, which he attributes to incidents occurring during his first and second periods of operational service. The dispute was adjudicated by the court, which was tasked with determining whether the claimed conditions met the criteria for a war-caused injury or disease under the relevant legislation.

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

Mr Crockett claims that he has cervical spondylosis and lumbar spondylosis which result from incidents which occurred on his first and second periods of operational service.LEGISLATIVE BACKGROUND Subject to the Act, the Commonwealth is liable to pay pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or a war-caused disease: section 13(1). Section 9 sets out the circumstances in which a veteran's injury or disease will be taken to be a war-caused injury or war-caused disease. Relevantly, s.9 provides:(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; . . . Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 outlined the application of s.13 to a claim for pension as follows:Section 13 creates in the Commonwealth a liability, inter alia, to pay a pension to a veteran who "has become incapacitated from a war-caused injury or a war-caused disease". The terms "war-caused injury" and "war-caused disease" are defined for the purposes of the Act by s.9. It is not necessary to set out the whole of that provision; it is sufficient to note that the definitions it contains prescribe either a causal or temporal connection between the relevant morbid condition suffered by a veteran and "operational service" or "eligible war service". Those terms are themselves defined by ss.6 and 7 respectively. An entitlement to a pension under s.13 thus depends upon three matters of fact: the veteran's operational service or eligible war service, the veteran's morbid condition and the connection between the two. The Commission, in determining a veteran's claim for a pension by way of compensation for incapacity from injury or disease, must have regard to s.120 of the Act, which deals with the standard of proof. Relevantly, it provides in respect of incapacity that relates to operational service:(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury; (b)that the disease was a war-caused disease or a defence-caused disease; or (c)that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A.

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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Citations

AGLC Citation

Crockett and Repatriation Commission [2002] AATA 208

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 15 of 15 shown

Benjamin v Repatriation Commission
[2001] FCA 1879 Para 7

…whether the veteran's symptoms constitute an injury or disease as defined. The Full Court of the Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 at paragraph 55 explained the sequence in the decision making process as follows: The first question for the Tribunal will be how to characterise the…
Repatriation Commission v Gorton
[2001] FCA 1194 Para 4

…triation Commission made its decision before the RMA determined the 1996 SoP. The Full Court of the Federal Court in Gorton v Repatriation Commission [2001] FCA 1194 held that the Tribunal should apply the SoP current at the time of the hearing unless an earlier SoP is more beneficial to the veteran. Allsop J, wit…
Paine and Repatriation Commission
[2001] AATA 489 Para 3

…to be satisfied that the evidence as a whole does point to one date rather than another. In other matters, e.g. Re Paine and Repatriation Commission [2001] AATA 489, the whole of the evidence indicates that other evidence is more reliable than the evidence given by the veteran at a hearing and the remaining evide…
Budworth v Repatriation Commission
[2001] FCA 317

…ion 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 Com…
Arnott v Repatriation Commission
[2001] FCA 262 Para 3

…out his work, and he did not report the incident or seek any medical treatment or require time off his duties. The Full Court of the Federal Court in Arnott v Repatriation Commission (2001) 32 AAR 445 and (2001) 63 ALD 575, adopted Finn J's construction in Harris of 'trauma to the lumbar spine' , and said (at 32 AAR 454, per Merkel J, Sp…
Repatriation Commission v Keeley H1/2000
[2000] HCATrans 730 Para 4

…that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley [Repatriation Commission v Keeley (2000) 98 FCR 108] by reference to the repealed SoP.…
Harris v Repatriation Commission
[2000] FCA 1687 Para 1

…Finn J in Harris v Repatriation Commission (2000) 62 ALD 174 at 185 explained what is required when applying step 3 of Deledio : … It is important to bear in mind that the tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether ma…
Repatriation Commission v Keeley
[2000] FCA 532 Para 4

…, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley [Repatriation Commission v Keeley (2000) 98 FCR 108] by reference to the repealed SoP.…
Repatriation Commission v Gosewinckel
[1999] FCA 1273 Para 5

…The concept was further considered by the Federal Court in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, at paragraphs [62], [63] and [64] at p704 where Weinberg J said: [62] Mr Hanks submitted that the tribunal fell into a number of distinct errors at this stage of its reasoning. It is not necessary to set out the entirety of his…
Repatriation Commission v Deledio
[1998] FCA 391

…njamin 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)…
Repatriation Commission v Bey
[1997] FCA 1347 Para 1

…ssion (1987) 74 ALR 518] states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker." ( Repatriation Commission v Bey (1997) 47 ALD 481, at 489). Does the material point to the requirements of the definition of trauma to the cervical spine namely: (i)acute (meaning "sharp"…
Deledio v Repatriation Commission
[1997] FCA 1047 Para 1

…The interrelationship between ss.120(1) and (3) and s.196B(2) was considered by the Full Court of the Federal Court in Deledio v Repatriation Commission (1998) 47 ALD 261. The Full Court described the application of these provisions as follows: 1. The Tribunal must consider all the material which is before it and determine whether that ma…
Repatriation Commission v Owens
[1996] HCATrans 215 Para 2

…is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904. For the reasons it gave, the tribunal was entitled to discard Mr Hadley's evidence. That left the evidence of Dr Mackay and Dr Hall. Neither put for…
Bushell v Repatriation Commission
[1992] HCA 47 Para 1

…Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 outlined the application of s.13 to a claim for pension as follows: Section 13 creates in the Commonwealth a liability, inter alia, to pay a pension to a veteran who "has become incapacitated from a war-caused injury or a war-caused disease". The terms…
East v Repatriation Commission
[1987] FCA 383 Para 1

…thesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East [East v Repatriation Commission (1987) 74 ALR 518] states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker." ( Repatriation Commission…

Legislation cited in this decision · 2

Veterans' Entitlements Act 1986 (Cth)
120(1), 120A(3), 13, 196B(2), 9 6 mentions (from Para 1)
Administrative Appeals Tribunal Act 1975 (Cth)
1 mention (from Para 2)