Godwin and Repatriation Commission - [2005] AATA 309

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 309
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1270

VETERANS’ APPEALS DIVISION )

Re JOHN ROBERT GODWIN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member
Date8 April 2005
Place Sydney

Decision
The decision under review is varied.

The Tribunal determines that Mr Godwin suffers PTSD which is war-caused. The earliest date of effect is 2 April 2002.

The decision of the Respondent finding that conductive hearing loss in the right ear and otitis externa of both ears are not related to service is affirmed.

The matter is remitted for assessment in accordance with the findings made.

Ms G Ettinger
Senior Member

catchwords
Veteran – Operational Service – Tribunal diagnoses PTSD - stressor met in SOP – ear problems not pursued and decision affirmed in that regard – decision varied to reflect finding that PTSD held to be war caused.
legislation
Veterans Entitlements Act 1986 ss 9, 120
Repatriation Medical Authority - Post Traumatic Stress Disorder (“PTSD”) Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999;
case law
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Budworth (2001) 66 ALD 285
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 49 ALD 193
Stoddart v Repatriation Commission [2003] 77 ALD 67
Woodward v Repatriation Commission [2003] 200 ALR 332
Smith v Repatriation Commission [2002] AATA 526
REASONS FOR DECISION

8 April 2005 Ms G Ettinger, Senior Member
     Dr M E C Thorpe, Member

1. The application before the Tribunal was that of Mr John Robert Godwin, appealing against the decision of the Repatriation Commission (“the Respondent”), dated 7 March 2002 (T2), as affirmed by the decision of the Veterans’ Review Board dated 16 July 2003 (T16), which held that Post Traumatic Stress Syndrome (“PTSD”), conductive hearing loss in the right ear and otitis external of both ears were not war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
2.       Mr Godwin told the Tribunal that he was pursuing only his claim for PTSD. Accordingly the Tribunal affirmed the decision of the Respondent with regard to Mr Godwin’s conductive hearing loss in the right ear and otitis external of both ears without hearing evidence or further considering it.
3.      At the Hearing, Mr Godwin was represented by Ms E Wood of counsel. Mr M Huthnance appeared for the Respondent.
ISSUES BEFORE THE TRIBUNAL
4.      The Tribunal had to decide:
·     the correct diagnosis for the Applicant’s mental illness;
· whether the condition was war-caused pursuant to section 9 of the Act
LEGISLATION
5.      The relevant legislation in this matter is the Veterans Entitlements Act 1986. The provisions of section 9 and section 120A of the Act apply, and the matter is to be decided in accordance with the relevant Statements of Principles (“SoPs”). The parties agreed that the relevant SOP is:
Post Traumatic Stress Disorder (“PTSD”)…

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 Godwin and Repatriation Commission

Details

AGLC: Godwin and Repatriation Commission [2005] AATA 309
Case: [2005] AATA 309
Decision Date: 8 April 2005

CaseChat Overview and Summary

The case of Godwin and the Repatriation Commission involved Mr. Godwin, a veteran, who was seeking a review of decisions made by the Repatriation Commission regarding his claims for benefits. The dispute primarily centred around whether his post-traumatic stress disorder (PTSD) was related to his military service and the extent to which other health conditions were service-related. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues that the court needed to decide were whether Mr. Godwin's PTSD was caused by his service and, if so, whether the Tribunal's determination that other conditions, such as conductive hearing loss and otitis externa, were not service-related was correct. Additionally, the court had to determine the appropriate date from which Mr. Godwin's PTSD should be considered as war-caused.

In its reasoning, the court found that the Tribunal correctly diagnosed Mr. Godwin's PTSD but erred in not recognising it as war-caused. The court held that the stressor Mr. Godwin experienced during his service met the criteria for operational service, thus qualifying his PTSD as war-caused. The court affirmed the Tribunal's decision that the other health conditions were not service-related. Consequently, the court varied the decision to acknowledge that Mr. Godwin's PTSD was war-caused, with an effective date of 2 April 2002. The matter was then remitted to the Commission for reassessment in light of these findings.

The final orders of the court varied the original decision to recognise Mr. Godwin's PTSD as war-caused, effective from 2 April 2002, while affirming the Tribunal's decision on the other conditions. The case was remitted for reassessment in accordance with the court's findings.

Orders

Orders of the court

The decision under review is varied.

The Tribunal determines that Mr Godwin suffers PTSD which is war-caused. The earliest date of effect is 2 April 2002.

The decision of the Respondent finding that conductive hearing loss in the right ear and otitis externa of both ears are not related to service is affirmed.

The matter is remitted for assessment in accordance with the findings made.

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		JOHN ROBERT GODWIN Applicant