JOHN WILLIAMS and REPATRIATION COMMISSION - [2009] AATA 912

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 912
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2782

VETERANS' APPEALS DIVISION )

Re JOHN WILLIAMS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Date27 November 2009
PlaceMelbourne

Decision
The decision of the Veterans' Review Board with respect to the conditions of Post-Traumatic Stress Disorder and Alcohol Abuse made on 21 May 2007 is set aside and in substitution IT IS DECIDED:

(i)        The applicant suffers the conditions of Post-Traumatic Stress Disorder and Alcohol Dependence; and

(ii)       The conditions are war‑caused.

(iii)      The application is remitted to the respondent for calculation of pension entitlement.

(iv)      The remainder of the decision under review is affirmed.

(Sgd) John Handley
Senior Member

VETERANS' ENTITLEMENTS – Applicant served in Vietnam – when acting as a shotgun in truck on road between Nui Dat and Vung Tau applicant feared ambush or landmine attack – vehicle not in convoy – reasonableness of perception of fear of death – response involved intense fear, helplessness or horror – PTSD and alcohol dependence definitions satisfied – category 1A stressor suffered – decision set aside
Veterans' Entitlements Act 1986 (Cth) s 120(1)
Delahunty v Repatriation Commission [2004] FCA 309
Keeley v Repatriation Commission (1999) 56 ALD 455; (1999) 30 AAR 48; [1999] FCA 1103
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484
Mines v Repatriation Commission [2004] FCA 1331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Witten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 27 AAR 144; (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194
Stoddart v Repatriation Commission (2003) 197 ALR 283; (2003) 74 ALD 366; [2003] FCA 334
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424
Statement of Principles Instrument No 1 of 2009
Statement of Principles Instrument No 17 of 2008
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 5 of 2008
Statement of Principles Instrument No 54 of 1999
Statement of Principles Instrument No 76 of 1998
REASONS FOR DECISION

27 November 2009

Mr John Handley, Senior Member

1.      The applicant applies to review a decision made by the Veterans' Review Board (VRB) on 21 May 2007. The VRB then affirmed a decision previously made by the respondent to continue pension at 60 percent of the general rate with respect to a number of accepted conditions. The VRB also decided to affirm a decision previously made by the respondent to deny the conditions of post-traumatic stress disorder (PTSD) and alcohol abuse as war-caused.
2.      The applicant is presently 61 years of age. The applicant was educated to Year 11 and then enlisted. He was a member of the Australian Army between…

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 JOHN WILLIAMS and REPATRIATION COMMISSION

Details

AGLC: JOHN WILLIAMS and REPATRIATION COMMISSION [2009] AATA 912
Case: [2009] AATA 912
Decision Date: 27 November 2009

CaseChat Overview and Summary

John Williams brought an appeal against a decision of the Veterans' Review Board, which had determined his eligibility for compensation under the Veterans' Entitlements Act 1986. The Board had concluded that Williams suffered from Post-Traumatic Stress Disorder and Alcohol Abuse but had not found these conditions to be war-caused. The case was heard in the Federal Court of Australia.

The central issue before the Court was whether the Board had correctly assessed the causation of Williams' Post-Traumatic Stress Disorder and Alcohol Dependence. Specifically, the Court had to determine if these conditions were connected to Williams' service in the armed forces, which would make them eligible for compensation under the Act. The Court also had to consider whether the Board's findings were supported by the evidence presented and if the correct legal principles had been applied.

The Court found that the Board had erred in its assessment of the evidence regarding the causation of Williams' conditions. It held that the Board had not appropriately considered the link between Williams' military service and his subsequent mental health issues. The Court noted that there was substantial evidence pointing to a war-related causation of both Post-Traumatic Stress Disorder and Alcohol Dependence. Consequently, the Court set aside the Board's decision on causation and substituted its own findings. The Court also remitted the matter back to the Board for recalculation of pension entitlements based on the revised findings.

The Court's final orders were that the decision of the Veterans' Review Board regarding the conditions of Post-Traumatic Stress Disorder and Alcohol Dependence be set aside. Instead, it was decided that Williams suffered from these conditions, which were war-caused. The application was remitted to the Board for recalculation of pension entitlement. The Court affirmed the remainder of the Board's decision.

Orders

Orders of the court

The decision of the Veterans' Review Board with respect to the conditions of Post-Traumatic Stress Disorder and Alcohol Abuse made on 21 May 2007 is set aside and in substitution IT IS DECIDED:

(i) The applicant suffers the conditions of Post-Traumatic Stress Disorder and Alcohol Dependence; and

(ii) The conditions are war‑caused.

(iii) The application is remitted to the respondent for calculation of pension entitlement.

(iv) The remainder of the decision under review is affirmed.

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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