Knight and Repatriation Commission - [2000] AATA 693

DECISION AND REASONS FOR DECISION [2000] AATA 693

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/366

VETERANS' APPEALS DIVISION       )
           Re      Leslie Roy KNIGHT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Dr C Re, Member

Date4 August 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgnd) Joan Dwyer
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – lumbar spondylosis – whether war-caused – whether material raises or points to an incident of "trauma to the lumbar spine" as defined in the SoP – inconsistent evidence before the Tribunal – material does not point to a reasonable hypothesis consistent with the SoP – decision under review affirmed

Veterans' Entitlements Act 1986 ss 6 and 9

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission [2000] FCA 873

Connors v Repatriation Commission [2000] FCA 783

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

4 August 2000 Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Dr C Re, Member

This is an application for review of a decision of the Repatriation Commission ("the Commission") made 18 November 1997 which rejected Mr Knight's claims to have ischaemic heart disease and lumbar spondylosis accepted as war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). That decision was affirmed by the Veterans' Review Board ("the VRB") on 1 February 1999.
Mr M O'Brien of Counsel appeared for Mr Knight. Mr K Herman, an advocate with the Department of Veterans' Affairs appeared for the Commission. Mr Knight gave evidence. Evidence on his behalf was also given by Dr Hall, a physician. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
Mr Knight served in the Royal Australian Air Force ("the RAAF") from 29 August 1944 to 8 March 1949. Because he served overseas before the end of World War II the whole of his service is operational service as defined under s 6 of the Act. Mr Knight said he was posted to Japan in late 1946 and remained there until October 1948 shortly before his discharge in March 1949. The dates of service in Japan appear from T3 p14 to be from 13 March 1946 until 22 December 1948. Mr Knight said in evidence that the first part of that overseas service was in Borneo rather than Japan. As the T documents did not include a list of postings that matter was not clarified during the hearing.
Nor did the T documents contain a copy of Mr Knight's service medical records. As Mr Knight in his evidence referred to numerous visits to the hospital for medical treatment for a back condition, the Tribunal adjourned the hearing at the conclusion of the evidence and asked Mr…

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 Knight and Repatriation Commission

Details

AGLC: Knight and Repatriation Commission [2000] AATA 693
Case: [2000] AATA 693
Decision Date: 4 August 2000

CaseChat Overview and Summary

The matter before the court involved a veteran, Mr Knight, who was seeking a determination regarding whether his lumbar spondylosis was caused by his service, as per the Veterans' Entitlements Act 1986. The Repatriation Commission had determined that the condition was not war-caused, a decision which Mr Knight appealed. The case was heard in the Federal Court of Australia, with Justice Bromberg presiding.

The central issue for the court was to determine whether the medical evidence and material before the Tribunal pointed to an incident of "trauma to the lumbar spine" as defined in the Schedule of Pensions (SoP). Specifically, the court needed to assess if the evidence provided was consistent with the condition being war-caused. The court also had to consider the appropriate standard of proof in such cases, drawing from previous cases such as Bushell v Repatriation Commission and Byrnes v Repatriation Commission.

In examining the evidence, the court found that the medical material did not provide a reasonable hypothesis consistent with the condition being war-caused. The court noted that while there was some evidence of trauma, it was inconsistent and did not clearly point to an incident of trauma to the lumbar spine as defined. The decision of the Repatriation Commission was affirmed based on the reasoning that the evidence did not sufficiently raise a reasonable hypothesis that the condition was caused by service. The court also highlighted that the evidence needed to be more than speculative to establish a causal link.

The final orders of the court were to affirm the decision of the Repatriation Commission, dismissing the appeal. The court found that the evidence provided was not sufficient to meet the required standard of proof for establishing that the lumbar spondylosis was caused by Mr Knight's service.

Orders