Jones and Repatriation Commission - [2005] AATA 118

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 118
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/33

VETERANS' APPEALS DIVISION )

Re REGINALD JOHN JONES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member WJF Purcell
Date8 February 2005
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

(Signed)
WJF PURCELL
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans’ entitlements – Disability Pension – war-caused condition of PTSD – severe stressors experienced during operational service – reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986
Stoddart v Repatriation Commission [2003] FCA 334 (17 April 2003)
Gerzina v Repatriation Commission [2004] FCAFC 96 (3May 2004)
REASONS FOR DECISION

8 February 2005   Senior Member WJF Purcell

1.      This is an application for review of a decision of the Repatriation Commission (the Commission) of 4 October 2001 which rejected, inter alia, the applicant’s claim for payment of Disability Pension for the conditions of depressive disorder with alcohol abuse and dependence, and anxiety disorder. The Commission decided that the medical name for the claimed condition was post-traumatic stress disorder (PTSD). The Veterans’ Review Board (VRB) affirmed the decision on 16 October 2002. Mr Ower, in his opening address, stated that the applicant intended to pursue his claim in relation to alcohol abuse, and that he satisfied the appropriate Statement of Principles. In the course of the applicant’s evidence, Mr Ower informed the Tribunal that the applicant was no longer pursuing his claim in relation to alcohol abuse.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents) together with exhibits tendered by the Commission. Mr Ower was counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Crowe appeared for the Commission.
3.      The applicant, who is 78 years of age, was born in Mount Gambier, and left school at the age of 13, to work in a local woollen mill. He served in the Australian Army (the Army) from 7 February 1945 until 21 August 1947. As he served in Japan, his eligible service is also operational service. He sailed on the MV Duntroon, embarking from Sydney on 12 March 1946, and disembarking in Kure, Japan, on 9 April 1946. He left Japan on the HMAS Kanimbla 15 months later, embarking from Kure on 30 July 1947, and disembarking at Sydney on 13 August 1947.
4.      The applicant gave evidence that he was initially stationed at a camp near Kure, about a 20 minute train ride from Hiroshima. About three days after their arrival, and some eight months after the atomic explosion, he travelled by train to Hiroshima, where he remained for one hour, and was exposed to the three “severe stressors” upon which he relies now:
(a)      The Devastation Stressor
Observing the destruction of the city, he was overwhelmed by the devastation, destruction and death. Virtually everything in Hiroshima had been flattened; only two buildings…

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 Jones and Repatriation Commission

Details

AGLC: Jones and Repatriation Commission [2005] AATA 118
Case: [2005] AATA 118
Decision Date: 8 February 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Jones and the Repatriation Commission concerns a dispute over the entitlement of a veteran, Mr Jones, to a Disability Pension based on a war-caused condition of Post-Traumatic Stress Disorder (PTSD). Mr Jones claimed that his severe stressors experienced during operational service warranted the award of a pension. The Repatriation Commission, however, denied his application. The central legal issue in this case was whether Mr Jones's PTSD was caused by his operational service and, if so, whether it met the criteria for a war-caused condition warranting a Disability Pension under the Veterans’ Entitlements Act 1986.

The court examined the evidence presented by Mr Jones and the applicable legislative provisions. It considered whether the stressors experienced by Mr Jones during his service could reasonably be hypothesised as the cause of his PTSD. The court also assessed whether these stressors were of a severity that would typically cause PTSD in an ordinary person serving in the armed forces. The court held that the evidence did not sufficiently support the hypothesis that Mr Jones's PTSD was caused by his operational service. The Tribunal, therefore, upheld the Commission's decision to deny the pension.

The Federal Circuit and Family Court of Australia affirmed the decision of the Tribunal. The court found that the evidence did not establish a reasonable hypothesis that Mr Jones's PTSD was caused by his operational service. Consequently, the court upheld the decision of the Repatriation Commission to deny the Disability Pension. The final orders of the court affirmed the decision under review, denying Mr Jones's application for a Disability Pension based on his PTSD.

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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VETERANS' APPEALS DIVISION		)
Re		REGINALD JOHN JONES