Fenner and Repatriation Commission - [2004] AATA 368

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 368
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/40

VETERANS' APPEALS DIVISION
)

Re JUERGEN KLAUS FENNER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller
Date8 April 2004
PlaceBrisbane

Decision
The Tribunal affirms the decision to reject a claim by Juergen Klaus Fennner for a disability pension in respect of alcohol abuse and post traumatic stress disorder, pursuant to the provisions of the Veterans' Entitlements Act 1986.

..............SIGNED................................
D.W. MULLER
DEPUTY PRESIDENT

CATCHWORDS
VETERANS’ AFFAIRS- disability pension – post traumatic stress disorder – alcohol abuse – claimed stressors either did not occur or were not of the severity claimed - decision affirmed
Veterans’ Entitlements Act 1986: s196B(2)
REASONS FOR DECISION

Deputy President Don Muller

1. This is an application by Juergen Klaus Fenner, the applicant, for review of a decision to reject a claim pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the Act) for pension for alcohol abuse (AA) and post traumatic stress disorder (PTSD) as war-caused disabilities, within the meaning of those terms in section 9 of the Act.
2.      The applicant was represented by Mr Piper, Solicitor, and the respondent was represented by Mr Doube.
3.      It was agreed between the parties that Mr Fenner suffers from AA and from PTSD.
4.      Mr Fenner claims that while serving in the Royal Australian Navy (RAN), he experienced three severe stressors which led to his AA and PTSD. The claimed severe stressors were:
(a)Whilst working in the engine room, the crew received a telex which read “full steam ahead”. They remained at full steam ahead for a very lengthy period. They were told that an escort ship had detected a “ping” which indicated a submarine;
(b)The ship that he was serving on, entered Vung Tau Harbour during the TET offensive. He observed extensive war activity on the shore and in the air and he feared for his life; and
(c)On his first trip to Vietnam, and upon anchoring in Vung Tau Harbour he was frightened by the unexpected explosions of “scare” charges. On his third trip to Vung Tau Harbour he was exceptionally startled by a particularly loud scare charge.

5.      Mr Fenner was born on 13 March 1950. He joined the Navy in Western Australia on 13 October 1965 (when he was 15½ years old).
6.      Mr Fenner did his basic training at HMAS Leeuwin. He was transferred to the aircraft carrier, HMAS Sydney, in November 1966. He became a stoker in the engine/boiler room. His duties were to tend to the boilers and evaporators.
7.      The boiler room was situated two decks below sea level, in the middle of the ship. On either side of the boiler room, between the walls of the boiler room and the sides of the ship, there were large tanks which held either fuel or water.
8.      Mr Fenner did seven trips to Vietnam in the SYDNEY. His first trip was in April 1967,…

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 Fenner and Repatriation Commission

Details

AGLC: Fenner and Repatriation Commission [2004] AATA 368
Case: [2004] AATA 368
Decision Date: 8 April 2004

CaseChat Overview and Summary

The case of Fenner and Repatriation Commission involved Juergen Klaus Fenner, who sought a disability pension on the grounds of alcohol abuse and post-traumatic stress disorder. The dispute was heard and determined by the Administrative Appeals Tribunal of Australia. Fenner argued that his conditions were a result of his service in the military, warranting compensation under the Veterans' Entitlements Act 1986. The Repatriation Commission, however, contested this claim, arguing that the stressors that Fenner cited did not occur or were not severe enough to justify the pension.

The primary legal issue before the court was whether the claimed stressors were a direct result of Fenner's service and if they met the threshold of severity required for a disability pension under the relevant legislation. The court had to evaluate the evidence provided by Fenner against the statutory criteria set out in the Veterans' Entitlements Act 1986, particularly section 196B(2). This section outlines the conditions that must be met for a pension to be awarded based on mental health conditions linked to service.

In reaching its decision, the Tribunal carefully reviewed the evidence regarding the claimed stressors and their impact on Fenner's mental health. The Tribunal found that either the alleged stressors did not occur as claimed, or they were not of the severity required to warrant a pension. Consequently, the Tribunal upheld the Repatriation Commission's decision to reject Fenner's claim. The Tribunal's decision was based on the insufficient evidence to substantiate the severity and connection of the claimed stressors to Fenner's service.

The final orders of the Tribunal were to affirm the decision of the Repatriation Commission, rejecting Fenner's claim for a disability pension on the grounds of alcohol abuse and post-traumatic stress disorder, pursuant to the Veterans' Entitlements Act 1986.

Orders

Orders of the court

The Tribunal affirms the decision to reject a claim by Juergen Klaus Fennner for a disability pension in respect of alcohol abuse and post traumatic stress disorder, pursuant to the provisions of the Veterans' Entitlements Act 1986.

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		JUERGEN KLAUS FENNER