Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 259
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N 2006/1354-55
VETERANS’ APPEALS DIVISION )
Re Brian Hunter Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal
Dr J D Campbell, Member and Rear Admiral AR Horton ao, Member
Date21 April 2009
PlaceSydney
Decision (a) The decision under review in relation to the claim for post traumatic stress disorder is affirmed in so far as the post traumatic stress disorder is concerned, but is varied to include a finding that Mr Hunter has a war-caused disease of alcohol dependence (in remission) with the date of effect being 2 March 2005; and
(b) The decision under review in relation to rate of pension payable is affirmed at 100 percent of the general rate.
...................[Sgd]........................
Dr J D Campbell
Member
CATCHWORDS
Veterans’ Entitlements – Disability pension – Claim for post traumatic stress disorder – Claim for special rate – Reasonable hypothesis based on statement of principles – Whether post traumatic stress disorder is war caused – Decision under review is varied and affirmed.
Veterans’ Entitlements Act 1986; ss 24, 28, 120
Statement of Principles concerning alcohol dependence or alcohol abuse No. 76 of 1998
Statement of Principles concerning alcohol dependence and alcohol abuse No. 1 of 2009
Statement of Principles concerning post traumatic stress disorder No. 3 of 1999
Statement of Principles concerning concerning posttraumatic stress disorder No 5 of 2008
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Delahunty v Repatriation Commission (2004) 38 AAR 511
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Fox v Repatriation Commission (1996) 45 ALD 317
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Owens (1996) 70 ALJR 904
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 75 ALD 420
REASONS FOR DECISION
21 April 2009 Dr J D Campbell, Member
Rear Admiral AR Horton ao, Member
1. Mr Hunter was born in April 1941. Mr Hunter served in the Royal Australian Navy from 26 May 1958 to 25 May 1979. Mr Hunter rendered operational service as follows:
(a)
HMAS Melbourne
7 April 1960 – 28 April 1960
6 May 1960 – 20 May 1960
6 June 1960 – 16 June 1960
(b)
HMAS Vendetta
26 March 1962 – 12 April 1962
(c)
HMAS Teal
11 May 1965 – 21 May 1965
28 May 1965 – 3 February 1966
(d)
HMAS Melbourne
25 April 1966 – 6 May 1966
25 May 1966 – 9 June 1966
2. Mr Hunter rendered eligible defence service between 7 December 1972 and 25 May 1979.
3. Mr Hunter lodged a claim on 1 February 2000 concerning post traumatic stress disorder (PTSD), alcohol dependence or alcohol abuse, chronic gastritis and gastro-oesphogeal reflux disease. On 16 March 2000, the Repatriation Commission determined that chronic gastritis and gastro-oesphageal reflux disease were war-caused diseases, while the conditions of post traumatic stress…
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- AGLC
- Hunter and Repatriation Commission [2009] AATA 259
- Case
- [2009] AATA 259
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Mr Hunter's PTSD was war-caused and, if so, whether it warranted a special rate of pension. The court also needed to determine if Mr Hunter had a war-caused disease of alcohol dependence, as claimed. The court's task involved examining the evidence presented and determining if the Commission's findings were legally sound and supported by the evidence. This included assessing the relevant statements of principles and prior case law to ascertain the correct application of the Veterans' Entitlements Act 1986.
In its decision, the court found that while the Repatriation Commission was correct in denying Mr Hunter's PTSD claim, it had erred in not recognising his war-caused alcohol dependence, which was in remission as of 2 March 2005. The court held that the evidence supported a finding of war-caused alcohol dependence, even if the condition was in remission. Regarding the pension rate, the court upheld the Commission's decision that Mr Hunter was entitled to a 100 percent pension rate based on his other war-caused conditions. Consequently, the court varied the decision to include the recognition of war-caused alcohol dependence but affirmed the pension rate as determined by the Commission.
The court's final orders affirmed the decision in relation to the pension rate but varied the decision to include a finding that Mr Hunter has a war-caused disease of alcohol dependence, in remission, effective from 2 March 2005.
Orders
Orders of the court
(a) The decision under review in relation to the claim for post traumatic stress disorder is affirmed in so far as the post traumatic stress disorder is concerned, but is varied to include a finding that Mr Hunter has a war-caused disease of alcohol dependence (in remission) with the date of effect being 2 March 2005; and
(b) The decision under review in relation to rate of pension payable is affirmed at 100 percent of the general rate.
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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