Johnson and Repatriation Commission - [2003] AATA 90

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 90
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/283
VETERANS' APPEALS DIVISION

Re: DENNIS JAMES HAROLD JOHNSON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       M.J. Carstairs, Member
Date:             31 January 2003
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s anxiety disorder is war‑caused within the meaning of the Veterans' Entitlements Act 1986, with effect from 4 June 2000. The matter is remitted to the respondent for assessment of the rate of pension.

(sgd) M.J. Carstairs
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ post traumatic stress disorder - anxiety disorder - whether applicant experienced a severe psychosocial stressor – whether pension not payable because of serious default, wilful act, or serious breach of discipline
Veterans' Entitlements Act 1986 ss9, 120(1), 120(3), 120(4), 120A(3)
Meehan v Repatriation Commission (2001) 64 ALD 366
O’Neil v Repatriation Commission (2001) 34 AAR 290
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Levi (1994) 61 FCR 189
REASONS FOR DECISION
31 January 2003  M.J. Carstairs, Member
1.      This is an application by Dennis James Harold Johnson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 8 February 2001. The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 14 September 2000 that lumbar spondylosis and anxiety disorder suffered by the applicant were not war-caused or defence‑caused.
2.      At the hearing of this matter on 14 August 2002 Mr P. Liefman, solicitor, represented the applicant and Mr G. Purcell, of counsel, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with one exhibit (Exhibit A1) tendered by the applicant and five exhibits (Exhibits R1-R5) tendered by the respondent. After the hearing the respondent filed additional submissions referring the Tribunal to various Federal Court decisions.
BACKGROUND
4.      The applicant was born on 29 September 1945 and grew up in Geelong.. He was the seventh of eleven children. The family lived in a caravan, which was too small to house all the children, so the children spent time in orphanages. The applicant had a disrupted education and left school without completing high school. He cannot read or write. He undertook a variety of jobs as a labourer, factory hand and storeman until he was selected for National Service.
5. The applicant served in the Australian Army (the army) from 20 April 1966 to 19 April 1968 and from 31 July 1968 to 3 December 1993, when he was discharged with the rank of Lance-Bombardier. From 8 June 1967 to 12 February 1968, the applicant served in South Vietnam and this period is operational service under s9 of the Veterans' Entitlements Act 1986 (the Act). In the army he was in the Artillery Corps and was a gun number in Vietnam,…

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 Johnson and Repatriation Commission

Details

AGLC: Johnson and Repatriation Commission [2003] AATA 90
Case: [2003] AATA 90
Decision Date: 31 January 2003

CaseChat Overview and Summary

The case involves an appeal by Dennis James Harold Johnson against the Repatriation Commission's decision that his lumbar spondylosis and anxiety disorder were not war-caused. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision of the Veterans' Review Board (VRB) and the Repatriation Commission. The primary legal issue was whether the applicant's anxiety disorder was caused by war service, as defined under the Veterans' Entitlements Act 1986. Specifically, the Tribunal had to determine whether the applicant experienced a severe psychosocial stressor during his service that could be connected to his anxiety disorder.

The Tribunal considered the evidence presented by both parties, including psychiatric evaluations and the applicant's own testimony about stressful incidents during his service in Vietnam. The Tribunal concluded that the applicant's anxiety disorder was indeed war-caused. The reasoning was based on the medical evidence showing that the applicant experienced significant psychological distress during and immediately after his service, and that two specific incidents during his service—the provocation incident and the death of a friend incident—qualified as severe psychosocial stressors. The Tribunal found these incidents led to ongoing symptoms of anxiety. The Tribunal also noted that the applicant's reaction to the provocation incident, while a breach of discipline, did not result from his own act but from the act of the Bombardier who provoked him.

The Tribunal set aside the decision under review and substituted its decision that the applicant’s anxiety disorder is war-caused within the meaning of the Veterans' Entitlements Act 1986, with effect from 4 June 2000. The matter was remitted to the respondent for assessment of the rate of pension.

Orders