Ferns and Repatriation Commission - [2000] AATA 592

DECISION AND REASONS FOR DECISION [2000] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/154

VETERANS'      APPEALS      DIVISION         )
           Re      ROBERT SPENCER FERNS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date18 July 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

.........(Sgd) B. H. Pascoe..........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – lumbar spondylosis – whether war-caused – whether veteran suffered trauma – whether reasonable hypothesis connecting service with medical condition – repetitive jumping from vehicles and heights – definition of trauma in SoP
Veterans' Entitlements Act 1986
Statement of Principles:
Instrument No. 27 of 1999 concerning lumbar spondylosis
Harris v Repatriation Commission [2000] FCA 873

REASONS FOR DECISION

18 July 2000 Mr B. H. Pascoe, Senior Member

This is an application to review a decision of the Veterans' Review Board ("the VRB") dated 9 December 1999 which affirmed a decision of the respondent of 25 May 1999 that the applicant's condition of lumbar spondylosis was not war-caused. In an earlier decision of the VRB made on 21 April 1986 it was decided that the applicant's condition of cervical spondylosis was war-caused.
At the hearing the applicant, Mr Ferns, was represented by Mr T. R. Williams, OAM, and the respondent by Mr R. Wallis, an advocate of the respondent. No oral evidence was given by the applicant. The Tribunal had before it the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T22, together with a letter of 4 April 2000 from the applicant setting out details of training activities in 1943. There was no dispute as to the facts relied upon by the applicant nor that he suffered from lumbar spondylosis. The sole dispute was whether the material before the Tribunal raised a reasonable hypothesis connecting the lumbar spondylosis with the circumstances of the applicant's operational service.
Mr Ferns served in the Australian Army from 15 December 1941 to 24 June 1946 which constituted eligible war service as defined in the Veterans' Entitlements Act 1986 ("the Act"). There was no dispute that the whole of this service also constituted operational service. He had, also, eligible non-operational service from 9 September 1940 to 30 November 1940 and from 15 March 1941 to 14 June 1941.
The relationship between the operational service and the condition of lumbar spondylosis was said to be specialised training over some 30 days in July/August 1943. In his letter of 4 April 2000, Mr Ferns stated:
"Sections of my battalion (30 BN A.I.F.) were advised that we were to undergo both combined operations and airborne operational training, at a place called Moonyanuka in Western Australia. We were not to reason why!
This training began quite pleasantly with us riding in trucks and jumping off the back while they moved at about 5 MPH. The pace quickened until we were departing and learning to 'roll' in full pack at approx. 15 MPH.
We were then taken to another area…

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 Ferns and Repatriation Commission

Details

AGLC: Ferns and Repatriation Commission [2000] AATA 592
Case: [2000] AATA 592
Decision Date: 18 July 2000

CaseChat Overview and Summary

The case before the Federal Court of Australia involved Ferns as the appellant and the Repatriation Commission as the respondent. The dispute pertained to the veteran's entitlement to compensation for lumbar spondylosis under the Veterans' Entitlements Act 1986. The central question was whether the lumbar spondylosis was caused by the veteran's war service, specifically whether it resulted from trauma experienced during service. This determination hinged on whether the service involved trauma within the meaning of the relevant Statement of Principles, Instrument No. 27 of 1999.

The court was tasked with interpreting the term 'trauma' as it applied to the veteran's experience of repetitive jumping from vehicles and heights. It had to ascertain whether such activities could be reasonably considered traumatic under the guidelines provided. This required a careful analysis of the facts presented and the provisions of Instrument No. 27. The court also considered precedent, particularly the decision in Harris v Repatriation Commission, to understand how similar cases had been resolved.

In delivering the judgment, the court examined the veteran's service history and the nature of the repetitive jumping activities. It concluded that such activities did not constitute trauma as defined in the Statement of Principles, because they did not involve sudden, significant physical impact or force. The court found that the veteran's lumbar spondylosis was more likely due to the natural degeneration associated with aging and not directly attributable to the trauma of service. Consequently, the appeal was dismissed, and the veteran's claim for compensation was not upheld.

Orders