Downes and Repatriation Commission - [2010] AATA 344

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 344
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1545

VETERANS' APPEALS DIVISION )

Re MICHAEL RAYMOND DOWNES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member, and Dr Kerry Breen AM, Member
Date10 May 2010
PlaceMelbourne

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

VETERANS' AFFAIRS – veterans’ entitlements – posttraumatic stress disorder – traumatic events – whether condition diagnosed and war-caused – alcohol abuse – whether war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Gerzina v Repatriation Commission [2003] FMCA 490
Hill v Repatriation Commission [2001] FCA 1775
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2008] FCA 50
REASONS FOR DECISION

10 May 2010 G. D. Friedman, Senior Member and Dr Kerry Breen AM, Member

1.      Michael Downes lodged a claimed for a disability pension for post-traumatic stress disorder (PTSD) and alcohol abuse as a result of his service in Vietnam. The respondent rejected the claim on the basis that he does not suffer from PTSD and that the alcohol abuse was not caused by his service in Vietnam.
2.      The issues before the Tribunal are:
·     Does Mr Downes suffer from the claimed conditions?
·     If so, is each condition war-caused?

LEGAL FRAMEWORK
3.      Mr Downes served in the Australian Army as a National Serviceman from 3 September 1968 to 2 September 1971. His service in Vietnam from 12 August 1970 to 2 August 1971 was operational service under the Veterans’ Entitlements Act 1986 (the Act). Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4.      The Tribunal is first required to determine to its reasonable satisfaction whether Mr Downes suffers from the claimed particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). In the circumstances of this case, where Mr Downes has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service then is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by…

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 Downes and Repatriation Commission

Details

AGLC: Downes and Repatriation Commission [2010] AATA 344
Case: [2010] AATA 344
Decision Date: 10 May 2010

CaseChat Overview and Summary

Downes, the applicant, sought a review of a decision by the Repatriation Commission to refuse him a war-caused posttraumatic stress disorder (PTSD) pension. The case was heard in the Administrative Appeals Tribunal. The central issue before the court was whether the applicant's PTSD was caused by his service in the military and if his alcohol abuse was related to his military service. The court needed to determine if the condition was diagnosed, if it was war-caused, and if the alcohol abuse was a result of the PTSD.

The Tribunal found that Downes had been diagnosed with PTSD by medical experts and that the condition was linked to traumatic events he experienced during his service. However, the Tribunal concluded that the applicant's PTSD was not war-caused because there was insufficient evidence to prove that the condition was a direct result of his military service. The Tribunal also found that the applicant's alcohol abuse was not war-caused, as there was no clear causal link between his PTSD and his alcohol abuse. Consequently, the Tribunal affirmed the decision of the Repatriation Commission to refuse the applicant a war-caused PTSD pension.

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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VETERANS' APPEALS DIVISION		)
Re		MICHAEL RAYMOND DOWNES