Cunningham and Repatriation Commission - [2007] AATA 1790

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1790
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600451

VETERANS' APPEALS DIVISION )

Re NEVILLE CUNNINGHAM

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member
Date21 September 2007
PlaceMelbourne

Decision The Tribunal sets aside the decision under review in relation to the claim for peptic ulcer disease and, in its stead, finds that the condition of peptic ulcer disease is war-caused. In all other respects the decision is affirmed.

(sgd) Mr B. H Pascoe
Senior Member

VETERANS’ AFFAIRS – Peptic ulcer disease, hiatus hernia, irritable bowl syndrome, depressive disorder – whether condition was war caused – chronic sea sickness – helicobacter pylori infection.
Veterans’ Entitlement Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION

21 September 2007 Mr B.H. Pascoe, Senior Member

1.      This is an application to review a decision of the respondent Repatriation Commission refusing claims for a number of medical conditions as being war- caused. The applicant, Mr N. Cunningham, had lodged a claim to have peptic ulcer disease, hiatus hernia, irritable bowel syndrome, depressive disorder with some associated features of anxiety and alcohol dependence or alcohol abuse accepted as war-caused. Further claims for goitre and fatty liver had been made but were not sought to be pursued further. At the hearing, the Tribunal was advised that Mr Cunningham was no longer pursuing a claim for alcohol dependence or alcohol abuse. The respondent had accepted claims for gastro-oesophageal reflux disease, sensorineural hearing loss of the left ear, tinnitus and tinea of the skin
2.      At the hearing Mr Cunningham was represented by Mr G. Chancellor. The respondent was represented by Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs.
3.      Mr Cunningham was born on 3 January 1952 and joined the Royal Australian Navy (Navy) on 7 July 1968 at age 16½ years. After a year of recruit training at HMAS Leeuwin in Western Australia, he was transferred to HMAS Penguin in Sydney before being assigned to HMAS Parramatta on 14 July 1969. When that vessel sailed from Sydney to Melbourne for re-fit it was the first occasion when Mr Cunningham had been on open seas. Prior to joining the Navy he had done a considerable amount of small craft sailing in the sheltered waters of Corio Bay. He said that on the trip in HMAS Parramatta he had periods of slight nausea but not seasickness. On 26 October 1969 he was posted to HMAS Sydney (Sydney). From 3 to 5 November, Sydney sailed from Jervis Bay on a 48 hour exercise. Mr Cunningham is recorded as reporting to sick bay on 4 November with dizziness, double vision, nausea and vomiting. He said that he was given anti-nausea tablets and ordered to lie down for an hour. His recollection was that he was then able to resume normal duties and to cope with the rest of the voyage. He said that he talked with Petty Officer…

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 Cunningham and Repatriation Commission

Details

AGLC: Cunningham and Repatriation Commission [2007] AATA 1790
Case: [2007] AATA 1790
Decision Date: 21 September 2007

CaseChat Overview and Summary

The Tribunal was tasked with reviewing a decision made by the Repatriation Commission regarding the war-related injury status of peptic ulcer disease in the case of Cunningham. The Tribunal was called upon to determine whether peptic ulcer disease, as claimed by Cunningham, was caused by his service in the Australian Defence Force and, if so, whether this condition warranted a war-related injury pension. The Federal Court of Australia was the judicial body responsible for overseeing the dispute resolution process.

The primary legal issue before the Tribunal was whether the evidence presented by Cunningham sufficiently established that his peptic ulcer disease was causally linked to his service in the military. This involved an assessment of the medical evidence provided and an analysis of the statutory criteria for determining the war-relatedness of a condition under the relevant legislation. The Tribunal also had to consider the broader context of service conditions and the potential for cumulative effects on health that might not be immediately apparent.

In its reasoning, the Tribunal carefully examined the medical evidence provided by Cunningham and the expert opinions presented. The Tribunal found that while the initial decision by the Repatriation Commission did not acknowledge the war-related nature of the peptic ulcer disease, the evidence presented did support a causal link between Cunningham's service and the onset of the disease. The Tribunal concluded that the Commission had failed to properly consider the evidence and that the condition should indeed be recognised as war-caused. Consequently, the Tribunal set aside the original decision and substituted its own finding that the condition was war-related. The Tribunal affirmed the rest of the Commission's decision, as it found that other aspects of the claim were appropriately addressed.

Orders

Orders of the court

The Tribunal sets aside the decision under review in relation to the claim for peptic ulcer disease and, in its stead, finds that the condition of peptic ulcer disease is war-caused. In all other respects the decision is affirmed.

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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