Hamilton and Repatriation Commission - [2000] AATA 299

DECISION AND REASONS FOR DECISION [2000] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL)
Nº N98/1356
VETERANS' APPEALS DIVISION)

Re: JOHN ROBERT HAMILTON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION

Tribunal: Mrs H. E. Hallowes, Senior Member Dr J. D. Campbell, Member

Date:24 March 2000
Place:Sydney

Decision: The decision of the Repatriation Commission dated 21 July 1997, which was affirmed by the Veterans' Review Board on 13 July 1998, is set aside. The Tribunal substitutes a decision that the veteran's post traumatic stress disorder was caused by his operational and defence service and he is entitled to be paid pension at the special rate under the Veterans' Entitlements Act 1986 from 22 July 1996.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS – post traumatic stress disorder – whether war-caused – whether defence-caused – rate of pension payable
Veterans' Entitlements Act 1986 – ss. 6, 9, 24, 28, 68, 70, 73, 120, 120A, 120B
Statement of Principles concerning Post Traumatic Stress Disorder
Instrument Nos 15 and 16 of 1994 as amended by Instruments Nos 225 and 226 of 1995
Instrument Nos 3 and 4 of 1999 as amended by Nos 54 and 55 of 1999
Keeley v Repatriation Commission (1999) 56 ALD 455
Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997)

REASONS FOR DECISION

24 March 2000 Mrs H. E. Hallowes, Senior Member Dr J. D. Campbell, Member

On 22 October 1996 the veteran lodged a claim for disability pension with respect to tinnitus and post traumatic stress disorder under the Veterans' Entitlements Act 1986 ("the Act"). He advised that his ship had fired thousands of rounds in Vietnam and he did not know whom he had killed. He was not coping, his drinking was bad and he had attempted suicide.
On 5 February 1997 the veteran provided details with respect to his incapacity when claiming service pension, describing injuries and diseases which were accepted as being war-caused or defence-caused, osteoarthritis right ankle being determined to be defence-caused on 31 October 1991; sensori-neural deafness being determined to be war-caused on 31 October 1991; right anterior knee pain syndrome being accepted as war-caused, although the Tribunal is satisfied that the delegate meant defence-caused, on 31 October 1994. The veteran also listed post traumatic stress disorder and tinnitus. He advised that he could not walk or use his legs for long periods of time. He could not hear well, suffering incessant buzzing in both his ears and he was constantly nervous and unable to communicate with people. On the same document he indicated that he had left school aged 16 years reaching Year 10 standard. During his 20 years service in the Navy he had developed skills of seamanship, weapons control and damage control. He last worked on 20 July 1995, having been employed in sales and as a cleaner/supervisor since leaving the Navy. The veteran recorded that he had arthritis in his left ankle. The veteran conceded that, following his stroke, he suffered from headaches but he stated that they had resolved. He also…

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 Hamilton and Repatriation Commission

Details

AGLC: Hamilton and Repatriation Commission [2000] AATA 299
Case: [2000] AATA 299
Decision Date: 24 March 2000

CaseChat Overview and Summary

In the matter of John Robert Hamilton, the applicant, and the Repatriation Commission, the respondent, the Administrative Appeals Tribunal (AAT) was required to determine whether the applicant's post-traumatic stress disorder (PTSD) was caused by his service in the Australian Defence Force and whether he was entitled to receive a pension under the Veterans' Entitlements Act 1986. The AAT had to examine the evidence presented, including medical assessments and the applicant's own testimony, to ascertain the origins and impact of his PTSD, particularly in relation to his operational and defence service. The Tribunal also needed to decide whether the applicant's incapacity, stemming from his war-caused and defence-caused injuries and diseases, prevented him from undertaking remunerative work.

The AAT concluded that the applicant's PTSD was indeed war-caused and defence-caused. The Tribunal found that the applicant's experiences during his service, particularly those involving threats to his physical integrity and the deaths of friends, met the criteria for PTSD as defined in the relevant Statement of Principles. The Tribunal accepted the evidence of the applicant's treating doctors over the opinion of the specialist consulted by the Repatriation Commission, who had only one consultation with the applicant. The Tribunal determined that the applicant's PTSD significantly impaired his occupational and social functioning. Additionally, the Tribunal found that the applicant's incapacity, primarily due to his PTSD, rendered him incapable of undertaking remunerative work, satisfying the requirements for a special rate pension under the Act. Consequently, the Tribunal set aside the decision of the Repatriation Commission and granted the applicant a pension from the date of his claim.

Orders