Heard and Repatriation Commission

Case [2004] AATA 773

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2004] AATA 773

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/481

VETERANS APPEALS  DIVISION )
Re MICHAEL HEARD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date23 July 2004

PlaceMelbourne

Decision

1.        The decision under review in so far as it decided that the illness suffered by the applicant is Post Traumatic Stress Disorder (PTSD) is affirmed.

2.        The decision under review in so far as it decided that PTSD is not war-caused is set aside and in substitution IT IS DECIDED that PTSD was war-caused.

(Sgd)  J Handley

Senior Member

VETERANS AFFAIRS – applicant served in Vietnam – exposed to sound of mortar blast and subsequent fear – on guard duty at a tip on base whilst armed and under observation by SAS personnel and felt vulnerable – learnt of death of a friend in combat and was “devastated” – whether “experienced a severe stressor” – discussion of objective and subjective interpretation – conflict in diagnosis – witnesses influenced by SOPs – Benjamin reaffirmed – DSM IV and manner of interpretation and application discussed

Veterans’ Entitlements Act 1986 (Cth) s5D

Statement of Principles Instrument No. 3 of 1999

Statement of Principles Instrument No. 5 of 1999

Benjamin v Repatriation Commission (2001) 70 ALD 622

Benjamin v Repatriation Commission [2001] FCA 522

Budworth v Repatriation Commission (2001) 63 ALD 422

Gerzina v Repatriation Commission [2004] FCAFC 96

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Stoddart [2003] FCAFC 300

State of New South Wales v Seedsman [2000] NSWCA 119

Stoddart v Repatriation Commission  [2003] FCA 334

Woodward v Repatriation Commission [2003] FCAFC 160

Tame v The State of New South Wales [2002] HCA 35

Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

23 July 2004 Mr J. Handley, Senior Member     

1.      The applicant applies to review a decision made by the Veterans Review Board (“VRB”) on 30 January 2001.  The VRB then decided to affirm a decision previously made by the respondent on 12 July 2001 refusing his claim for acceptance of the condition of Post Traumatic Stress Disorder (PTSD).

2.      The hearing of the application commenced in Eaglehawk on 3 April 2003, resumed in Melbourne on 16 June 2004 and concluded in Bendigo on 14 July 2004.  Written submissions were subsequently lodged.

3.      Mr Heard gave evidence in Eaglehawk and in Bendigo.  Doctors Percival and Walton both medico legal psychiatrists gave evidence.  The applicant’s wife and brother gave evidence in Bendigo.  Mr Liefman appeared on behalf of Mr Heard and Mr Douglass appeared on behalf of the respondent. 

4.      Mr Heard was a member of the Australian Army between 20 January 1970 and 15 November 1971.  He served in Vietnam between 22 December 1970 and 7 October 1971. 

5.      Doctor Percival on behalf of the applicant prepared a report dated 6 February 2003,…

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Details
AGLC
Heard and Repatriation Commission [2004] AATA 773
Case
[2004] AATA 773
Decision Date

CaseChat Overview and Summary

The case involved the applicant, who was seeking a determination regarding the causation of a diagnosed Post Traumatic Stress Disorder (PTSD). The Repatriation Commission had previously determined that the applicant suffered from PTSD but did not deem it to be war-caused. The applicant sought judicial review of this decision in the Federal Court of Australia. The central legal issues were whether the Commission's determination that the applicant's PTSD was not war-caused was correct and whether the Commission had erred in its application of relevant legislation and principles. Specifically, the court had to consider whether the Commission adequately assessed the applicant's history and circumstances to determine the war-causation of the PTSD.

The Federal Court found that the Commission had erred in its determination. The court held that the Commission had not appropriately assessed the applicant's experiences and the nature of the events that led to the PTSD diagnosis. The court emphasised the importance of considering the specific events and their impact on the applicant, as well as the relevant statutory provisions and case law. The Commission's decision was found to be flawed as it did not sufficiently weigh the evidence and did not correctly apply the applicable legal principles. Consequently, the court set aside the decision that PTSD was not war-caused and substituted its own decision that PTSD was indeed war-caused.

The orders of the court affirmed the Commission's determination that the applicant suffered from PTSD but overturned the finding that it was not war-caused. The court's decision highlighted the necessity for the Commission to carefully evaluate the evidence and apply the relevant legal standards when determining the causation of a condition like PTSD in the context of war service.

Orders

Orders of the court

1. The decision under review in so far as it decided that the illness suffered by the applicant is Post Traumatic Stress Disorder (PTSD) is affirmed.

2. The decision under review in so far as it decided that PTSD is not war-caused is set aside and in substitution IT IS DECIDED that PTSD was war-caused.

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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