Emmerton and Repatriation Commission - [2009] AATA 576

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 576
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5266

VETERANS' APPEALS DIVISION )

Re ANTHONY LAWRENCE EMMERTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date4 August 2009
PlaceAdelaide

Decision
The Tribunal affirms the decision of the Repatriation Commission dated 12 December 2006 as affirmed by the Veterans' Review Board on 17 August 2007 determining that generalised anxiety disorder was not war-caused.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans’ entitlements – operational service – claim that generalised anxiety disorder was war-caused – consideration of Statement of Principles – observing sonar reading which applicant considered may have been an enemy diver – observing wounded but treated soldiers in a hospital – landing craft trip from HMAS Brisbane to Da Nang Harbour and observing puff of smoke in foothills – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 9, 120(1), 120(3), 120A and 196
Bull v Repatriation Commission (2001) 66 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION

4 August 2009   Mr J G Short (Member)

1.      Mr Emmerton was engaged in operational service in Vietnamese waters from 16 March 1971 to 11 October 1971 on board HMAS Brisbane. On 13 October 2006 Mr Emmerton lodged a claim for acceptance of conditions including “emotional disorder” now diagnosed as generalised anxiety disorder. The Repatriation Commission (the Commission) refused the claim for pension in respect of generalised anxiety disorder (GAD). On 17 August 2007 the Veterans’ Review Board (the VRB) affirmed the Commission’s decision in respect of GAD.
issue before the Tribunal
2.      The issue before me is whether Mr Emmerton’s GAD is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act). Both parties accept the diagnosis of GAD.
background
3.      Mr Emmerton asserts in the present proceedings, in essence, that certain stressful events occurred during his operational service, and caused the condition on which his claim is based. Mr Emmerton referred to three events which he suggested satisfied the requirements of either Statement of Principles (SoP) 1 of 2000 or 101 of 2007.
4.      Mr Emmerton struggled to accurately recall the detail of the events and his evidence provided before me was inconsistent with some aspects of the history Mr Emmerton had previously provided, including the history previously provided to Dr Ewer and upon which Dr Ewer based his reports dated 22 October 1999, 13 November 2002, 20 October 2006, and 11 January 2008. After noting Dr Ewer’s difficulty in providing expert opinion evidence based upon the evidence Mr Emmerton provided to me, I adjourned further consideration of the matter so that Dr Ewer…

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 Emmerton and Repatriation Commission

Details

AGLC: Emmerton and Repatriation Commission [2009] AATA 576
Case: [2009] AATA 576
Decision Date: 4 August 2009

CaseChat Overview and Summary

Emmerton filed an appeal against the Repatriation Commission's decision to deny his claim for war-caused generalised anxiety disorder. The appeal was heard by the Administrative Appeals Tribunal, which was required to review the Commission's decision based on the evidence presented. The Tribunal had to determine whether Emmerton's disorder was caused by his operational service during his military career, considering various incidents he cited as potential causes.

The Tribunal examined Emmerton's claims, including observing a sonar reading he believed might have been an enemy diver, witnessing wounded soldiers in a hospital, a landing craft trip from HMAS Brisbane to Da Nang Harbour, and seeing a puff of smoke in the foothills. The court had to consider these incidents against the Statement of Principles and relevant case law, such as Bull v Repatriation Commission, East v Repatriation Commission, and Lees v Repatriation Commission. The decision hinged on whether the incidents were sufficient to establish a causal link between Emmerton's service and his disorder.

After reviewing the evidence, the Tribunal found that none of the incidents cited by Emmerton were sufficient to establish a causal link between his service and the generalised anxiety disorder. The Tribunal concluded that the Commission's decision was reasonable and affirmed it, agreeing that the disorder was not war-caused. The Tribunal's decision was based on the lack of direct evidence connecting the claimed incidents to the onset of the disorder.

The Tribunal affirmed the decision of the Repatriation Commission dated 12 December 2006, as affirmed by the Veterans' Review Board on 17 August 2007, determining that generalised anxiety disorder was not war-caused. The appeal was dismissed, and the original decision stood.

Orders

Orders of the court

The Tribunal affirms the decision of the Repatriation Commission dated 12 December 2006 as affirmed by the Veterans' Review Board on 17 August 2007 determining that generalised anxiety disorder was not war-caused.

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		ANTHONY LAWRENCE EMMERTON