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Gibson and Repatriation Commission

Gibson and Repatriation Commission

Case [2004] AATA 870 18 August 2004

Contract Formation

Unconscionable Conduct

Military Service

PTSD

Operational Service

Statement of Principles

Burden of Proof

Veterans' Affairs

Military Law

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CATCHWORDS – VETERANS’ AFFAIRS – whether post traumatic stress disorder war-caused – application of Statement of Principles – whether experienced severe stressor – whether reasonable hypothesis – whether satisfied beyond reasonable doubt that condition not war-caused – decision set aside.

Veterans’ Entitlements Act 1986 ss. 5AB, 8, 9, 120, 120A and 196B

DECISION AND REASONS FOR DECISION [2004] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/149-150
VETERANS’   APPEALS   DIVISION                )

Re BRUCE WARWICK GIBSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  18 August, 2004
Place:  Adelaide

Decision:The Tribunal

1.set aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claim for Post Traumatic Stress Disorder;
2.substitute for that decision, a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s. 9 of the Veterans’ Entitlements Act 1986; and
3.adjourn further consideration of the decisions of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans’ Review Board on 5 February, 2001 regarding the applicant’s claims for hypertension and ischaemic heart disease.

S A FORGIE
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2001/149-150

GENERAL ADMINISTRATIVE DIVISION )

Re:BRUCE WARWICK GIBSON

Applicant

And:REPATRIATION COMMISSION

Respondent

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 30 September 2004

CORRIGENDUM TO DECISION [2004] AATA 870

The Tribunal amends its decision and reasons for decision published on 18 August 2004 as follows:

Cover Page
heading
delete “S2001/149-150”
insert “S2001/149”

S A FORGIE
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2001/149

GENERAL ADMINISTRATIVE DIVISION )

Re:BRUCE WARWICK GIBSON

Applicant

And:REPATRIATION COMMISSION

Respondent

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 7 September, 2004

CORRIGENDUM TO DECISION [2004] AATA 870

The Tribunal amends its decision and reasons for decision published on 18 August, 2004 as follows:

Decision
Delete the contents of Decision.
Substitute the following words:
“1. set aside the decision of the Repatriation Commission dated 22 March, 2000 and affirmed by the Veterans; Review Board on 5 February, 2001 regarding the applicant’s claim for Post Traumatic Stress Disorder; and
2. substitute for that decision, a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s.9 of the Veterans’ Entitlements Act 1986.”

Reasons…

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 Gibson and Repatriation Commission

Details

AGLC: Gibson and Repatriation Commission [2004] AATA 870
Case: [2004] AATA 870
Decision Date: 18 August 2004

CaseChat Overview and Summary

Bruce Warwick Gibson applied for review of decisions of the Repatriation Commission which had refused his claim that his post traumatic stress disorder should be accepted as a war-caused disease within the meaning of the Veterans’ Entitlements Act 1986. The Tribunal found that the applicant had experienced two severe stressors during his operational service on the Sydney. Their combined effect led him to have experienced, witnessed, or been confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. One of those stressors was what I have referred to as the midshipman incident and the other was the pulsating boiler incident. The Tribunal set aside the decision of the Repatriation Commission and substituted for that decision, a decision that the applicant’s Post Traumatic Stress Disorder was war-caused within the meaning of s.9 of the Veterans’ Entitlements Act 1986. The Tribunal also adjourned further consideration of the decisions of the Repatriation Commission regarding the applicant’s claims for hypertension and ischaemic heart disease.

Orders