Harrison-Kyte and Repatriation Commission

Case [2004] AATA 360


Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 360

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/62

VETERANS' APPEALS DIVISION

)

Re PETER HARRISON-KYTE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date7 April 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

........(Sgd) O Rinaudo......

Member

CATCHWORDS

VETERANS’ AFFAIRS – pension – post traumatic stress disorder – whether disorder is war or defence caused – causation – incapacity did not arise from a war-caused injury – whether incidents were severe stressors – decision affirmed

Veterans’ Entitlements Act 1986 ss 9, 70, 120, 120A

Parr v Repatriation Commission [2003] AATA 93
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission [2003] FCA FC 160
Menhennett and Repatriation Commission [2001] ATTA 358
Egan and Repatriation Commission [2002] AATA 739
Rice and Repatriation Commission [2003] AATA 143
Repatriation Commission v Budworth [2001] FCA 1421
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR 82
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445

REASONS FOR DECISION

7 April 2004 Mr O Rinaudo, Member     

Background

1.      The applicant, Peter Harrison-Kyte, seeks review of a decision of the Repatriation Commission dated 7 December 2000 which refused a claim for pension and treatment for thoracic spondylosis, lumbar spondylosis and post traumatic stress disorder on the basis that they were not due to service.  The decision was affirmed by the Veterans’ Review Board on 13 December 2001.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, marked as Exhibit 1 and the following documentary evidence.

Exhibit 2        Statement of PJ Harrison-Kyte dated 7 September 2002

Exhibit 3        Statement of Peter Harrison-Kyte dated 6 November 2002

Exhibit 4        Statement of Kenneth Vandermolen dated 20 January 2003

Exhibit 5        Transcript of VRB Proceedings held on 13 December 2001

Exhibit 6Writeway Report – Commodore PM Mulcare RAN Rtd dated 5 November 2002

Exhibit 7Report of Dr Karl Wiener dated 2 January 1997

Exhibit 8Report of Dr Peter Cotton dated 1 June 1997

Exhibit 9Medical Certificates from Dr Ivan Holm – 6 December 1996 to 12 December 1997

Exhibit 10Letter from Department of Defence dated 16 December 2002 regarding applicant

Exhibit 11Outpatient Medical Record of Mr Kenneth Vandermolen

Exhibit 12Report of Dr Ivan Holm dated 17 January 1997

3.      The applicant, Mr Kenneth Vandermolen and Dr Ivan Holm gave evidence for the applicant.  Dr Karl Wiener and Commodore Mulcare gave evidence for the respondent. 

4.      The applicant was born on 22 April 1949.  The applicant enlisted in the Royal Australian Navy on 5 January 1965 and was discharged unsuitable on 9 February 1975. 

5.      The applicant rendered the following periods of operational service:

·     24 April 1966 to 18 May 1966

·     25 May 1966 to 11 June 1966

·     24 February 1972 to 3 March 1972

The applicant also rendered eligible defence service for the…

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AGLC
Harrison-Kyte and Repatriation Commission [2004] AATA 360
Case
[2004] AATA 360
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved an application by Harrison-Kyte for a review of a decision made by the Repatriation Commission, which had denied his claim for a pension based on a diagnosis of post-traumatic stress disorder (PTSD). The dispute centred on whether the PTSD was caused by a war or defence-related incident, and if so, whether the incapacity arose from such a war-caused injury. The Tribunal was tasked with interpreting relevant provisions of the Veterans’ Entitlements Act 1986 and applying them to the facts of the case.

The central legal issues before the Tribunal were the interpretation of the terms "war-caused injury" and "defence-caused injury" as defined in the Act, and the identification of the specific incidents that constituted severe stressors leading to the PTSD diagnosis. The Tribunal needed to determine if the claimed incidents were indeed severe stressors that met the legislative criteria for a war-related injury and whether the PTSD could be attributed to these incidents. Additionally, the Tribunal had to consider whether the incapacity resulting from the PTSD arose from a war-caused injury, as required by the Act.

In reaching its decision, the Tribunal examined the evidence presented and the relevant legal precedents. It considered the statutory definitions and the case law interpreting these terms, including the decisions in Parr v Repatriation Commission, Stoddart v Repatriation Commission, and others. The Tribunal concluded that the incidents claimed by Harrison-Kyte did not meet the threshold of severe stressors necessary to be classified as war-caused injuries. Furthermore, it found that the incapacity arising from the PTSD did not stem from a war-caused injury, as required under the Act. Consequently, the Tribunal affirmed the original decision of the Repatriation Commission, denying the pension claim.

The Tribunal's decision was affirmed, and no pension was granted to Harrison-Kyte. The Tribunal found that the incidents in question were not severe enough to qualify as war-caused injuries, and the incapacity resulting from the PTSD did not arise from such injuries. This outcome was based on the statutory definitions and the applicable case law.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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