Gorton and Repatriation Commission - [2003] AATA 196

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 196
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/427

VETERANS APPEALS DIVISION )

Re RAYMOND ALLEN GORTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal P.J Lindsay, Senior Member
Dr M.E.C. Thorpe, Member
S. Webb, Member
Date28 February 2003
PlaceSydney

Decision
The Tribunal sets aside the decision under review and in substitution therefor decides that:

(a) The applicant’s hypertension is a war-caused disability with effect from 5 June 1996; and

(b) The matter is remitted to the Repatriation Commission for assessment of the correct rate of Disability Pension.

(sgd) P. J. Lindsay
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service –– diagnosis of hypertension with left ventricular hypertrophy – whether condition war-caused – alcohol abuse and alcohol dependence – whether veteran experienced severe stressor - decision set aside.
Veterans’ Entitlement Act 1986, ss. 9, 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:

-     Instrument No. 31 of 2001 concerning Hypertension
-     Instrument No.83 of 1995 concerning Hypertension
-     Instrument No.76 of 1998 concerning Alcohol Abuse or Dependence
-     Instrument No.5 of 1994 concerning Psychoactive Substance Abuse or Dependence
-     Instrument No. 1 of 2000 concerning Anxiety Disorder
-     Instrument No.48 of 1994 concerning Generalised Anxiety Disorder, as amended by Instrument No. 275 of 1995
-     Instrument No. 9 of 1999 concerning Panic Disorder

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton [2001] FCA 1194
East v Repatriation Commission (1987) 16 FCR 517
O’Neil v Repatriation Commission [2001] FCA 1492
Freeman v Repatriation Commission [2002] FCA 576
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v O’Brien (1985) 155 CLR 422
REASONS FOR DECISION

P.J. Lindsay, Senior Member
Dr M.E.C. Thorpe, Member
S. Webb, Member

1.      This is an application under the Veterans’ Entitlements Act 1986 (the Act) by Mr Raymond Allen Gorton (the applicant) for review of a decision by the Repatriation Commission (the Commission) dated 14 February 1997 refusing his claim that hypertension with left ventricular hypertrophy was war-caused.
2. At the hearing, Mr C. Colborne of counsel appeared for Mr Gorton and the Commission was represented by Mr J. Marsh of the Department of Veterans’ Affairs (the Department). Mr Gorton and Mr B. OKeefe, consultant Military Historian, gave evidence. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing, including the appeal book in the proceedings before the Full Court of the Federal Court in Repatriation Commission v Gorton N 378 /2001 (Exhibit A1).
background
3.      The following information is provided by way of background and is not disputed.
4.      Mr Gorton was born on 20 July 1934. He was a member of the Royal Australian Navy from 8 July 1952 to 14 August 1957. He served in HMAS Arunta as an able seaman from July 1953 to March 1955 and rendered operational service from 25 January 1954 to 27 October 1954. Mr Gorton…

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 Gorton and Repatriation Commission

Details

AGLC: Gorton and Repatriation Commission [2003] AATA 196
Case: [2003] AATA 196
Decision Date: 28 February 2003

CaseChat Overview and Summary

The case involved a veteran who sought a disability pension on the grounds of hypertension with left ventricular hypertrophy. The Repatriation Commission found that the condition was not war-caused, and the Tribunal was asked to review that decision. The central legal issues revolved around whether the veteran's condition was caused by or contributed to by operational service and whether the veteran had experienced a severe stressor that could be linked to their condition. The veteran argued that their condition was war-caused, while the Commission contended that it was primarily due to alcohol abuse and dependence.

The Tribunal found that the Commission's decision did not adequately consider the veteran's medical evidence and the relevant Repatriation Medical Authority Statements of Principles. The Tribunal held that the veteran's hypertension was a war-caused disability, as it was reasonably attributable to their operational service, despite the presence of alcohol abuse and dependence. The Tribunal also determined that the veteran had experienced a severe stressor during their service, which could be linked to their condition. As a result, the Tribunal set aside the Commission's decision and remitted the matter back for reassessment of the correct rate of Disability Pension.

The Tribunal emphasised that the Commission must take into account all relevant medical evidence and consider the interplay between the veteran's service and their condition. The Tribunal also noted the importance of understanding the impact of severe stressors on the veteran's health and the need for a comprehensive assessment of all factors contributing to the condition. This decision highlights the importance of a thorough and balanced approach to determining the war-causation of a veteran's disability.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution therefor decides that:

(a) The applicant’s hypertension is a war-caused disability with effect from 5 June 1996; and

(b) The matter is remitted to the Repatriation Commission for assessment of the correct rate of Disability Pension.

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		RAYMOND ALLEN GORTON