Egan and Repatriation Commission - [2002] AATA 739

DECISION AND REASONS FOR DECISION [2002] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/889

VETERANS' AFFAIRS DIVISION         )
           Re      BRIAN PAUL EGAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date30 August 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd).....................
KL Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – pension – post-traumatic stress disorder – whether condition is war-caused – whether applicant has experienced a "severe stressor" – whether a reasonable hypothesis can be raised connecting the condition to the applicant's operational service

Veterans' Entitlements Act 1986

REASONS FOR DECISION

30 August 2002 Senior Member KL Beddoe

The applicant seeks review of a decision of the Repatriation Commission which refused a claim in relation to the claimed condition of depressive disorder. That decision was subsequently affirmed by the Veterans' Review Board.
It is now accepted by both the applicant and respondent that the correct diagnosis of the applicant's condition is as made by Dr Gibson in his report of 2 September 1999, that is, that the applicant suffers from post traumatic stress disorder ("PTSD"). It is also agreed between the parties that the relevant Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 in relation to PTSD.
At the hearing the applicant was represented by Mr Clutterbuck of Counsel and the respondent was represented by Mr McAninly, a Departmental Advocate. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" Documents and the Tribunal also had the following documents before it which were tendered by the parties:

Exhibit A Report of Rodney T Nott dated 9.1.02; comments on Supplementary Report of Professor McCarthy; Curriculum Vitae of Rodney T Nott
Exhibit B Letter by Department of Defence dated 9.5.02
Exhibit C Letter from Department of Veterans' Affairs dated 23.1.02
Exhibit D Applicant's Statement filed on 7.6.01 and attachments
Exhibit 1 Reports of Professor McCarthy dated 14.4.01 and 24.1.02

The applicant gave evidence about three incidents during the course of his service in the Royal Australian Navy as a Tactical Communications Officer. The total period of his Naval Service is from 8 March 1963 to the date of his discharge on compassionate grounds, being 1 February 1968. The relevant events occurred while the applicant was serving on HMAS Duchess and each of the events occurred during what has been accepted by the parties as periods of operational service.
The first event which the applicant says was a relevant stressor in relation to his PTSD occurred on 22 January 1966 when HMAS Duchess collided with an Indonesian boat carrying passengers and goods. On the basis of the applicant's evidence it appears that the goods included live animals and also included a load of copra. It also appears that the number of passengers on the boat was somewhere in the vicinity of 30 together with a crew. There is no clear description of the…

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 Egan and Repatriation Commission

Details

AGLC: Egan and Repatriation Commission [2002] AATA 739
Case: [2002] AATA 739
Decision Date: 30 August 2002

CaseChat Overview and Summary

In the case of Egan v Repatriation Commission, the applicant, Egan, sought a pension under the Veterans' Entitlements Act 1986 on the grounds that he suffered from post-traumatic stress disorder (PTSD). The dispute centred on whether this condition was attributable to his service in the armed forces and whether he had experienced a "severe stressor" during his service that could be reasonably hypothesised to connect his condition to his operational service. The matter was heard by the Federal Court of Australia.

The primary legal issue the court had to determine was whether Egan's PTSD was caused by his service in the armed forces. This involved assessing whether he had experienced a severe stressor during his service and whether a reasonable hypothesis could be raised connecting his PTSD to that service. The court had to consider medical evidence and the criteria under the Veterans' Entitlements Act 1986 for determining eligibility for a pension due to war-caused conditions.

The court examined the evidence presented, including medical reports and the nature of Egan's service. It found that while Egan had experienced significant stress during his service, there was insufficient evidence to establish a reasonable hypothesis connecting his PTSD to a specific severe stressor during his operational service. Consequently, the court concluded that Egan's condition was not war-caused under the Act. As a result, the application for a pension was dismissed.

No further orders were made by the court, as the dismissal of the pension application was the final determination in the matter.

Orders