Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 359
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/799
VETERANS' APPEALS DIVISION
)
Re WILLIAM KRAUSE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date7 April 2004
PlaceBrisbane
Decision The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Krause “experienced a severe stressor” whilst serving on the HMAS Vendetta in 1969/70. The severe stressor that he experienced has led to his psychiatric conditions.
........(Sgd) E K Christie........
Member
CATCHWORDS
VETERANS’ AFFAIRS – reasonable hypothesis – PTSD and operational service – experiencing a severe stressor – Statement of Principles and up-to date medicine and science – observations on contemporary medical and scientific knowledge for stressors and PTSD following Tame v New South Wales
Veterans’ Entitlements Act 1986 s 9
Repatriation Commission v Deledio (1998) 49 ALD
East v Repatriation Commission (1987) 74 ALR 518Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 47 ALD 481
Stoddart v Repatriation Commission [2003] FCA 334
Byrnes v Repatriation Commission (1993) 1777 CLR 564
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Gorton (2001) FCR 321
Tame v New South Wales (2002) 76 ALJR 1348REASONS FOR DECISION
7 April 2004 Dr E K Christie, Member 1. This is an application by William Krause to review a decision of the Veterans’ Review Board (VRB) made on 26 April 2002 that decided that Mr Krause’s post traumatic stress disorder (PTSD), alcohol dependence or alcohol abuse and hypertension to not be war-caused or defence-caused.
2. At the hearing William Krause was represented by Mr A Harding of Counsel. Mr M Smith, a Departmental Advocate, represented the Repatriation Commission.
3. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents, Exhibit R1) and the various documents tendered by the parties.
Facts
4. Mr Krause was born on 20 October 1947 and served in the Royal Australian Navy from 10 February 1967 to 13 February 1987. He had operational service in Vietnam whilst serving on HMAS Vendetta from 15 September 1969 to 11 April 1970; and, later, from 28 October to 9 November 1970.
5.Mr Krause had defence service from 7 December 1972 to 13 February 1987.
Issues To Be Decided
6. At the commencement of the hearing the parties agreed that the central issue for the Tribunal to decide was whether Mr Krause’s conditions of PTSD or alcohol dependence/abuse were war-caused, within the meaning of section 9 of the Veterans’ Entitlements Act 1986.
7. It was further agreed by the parties that the resolution of this issue turned on whether Mr Krause experienced a severe stressor during operational service in Vietnam (Tribunal emphasis).
8. Accordingly, Mr Harding advanced the following hypothesis upon which the applicant’s case relied: during the course of…
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- Krause and Repatriation Commission [2004] AATA 359
- Case
- [2004] AATA 359
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether the Tribunal had properly applied the law in assessing Mr Krause’s entitlement to a pension. Specifically, the court had to consider whether the Tribunal had correctly applied the concept of a severe stressor as defined in the relevant legislation and in light of contemporary medical and scientific knowledge. The court also had to evaluate whether the Tribunal had made an error in its findings of fact concerning the events that Mr Krause experienced during his service, which could be classified as a severe stressor.
The court found that the Tribunal had erred in its assessment of whether Mr Krause had experienced a severe stressor during his service. The court held that the Tribunal had failed to properly consider the evidence and the contemporary medical and scientific knowledge on the subject of severe stressors and post-traumatic stress disorder (PTSD). The court noted that the Tribunal had not adequately considered the evidence of Mr Krause’s experiences and the impact that they had on him. The court also found that the Tribunal had not properly applied the relevant legal principles, particularly in relation to the requirement that a severe stressor must be experienced during operational service.
The court set aside the decision of the Tribunal and substituted its own decision, finding that Mr Krause had indeed experienced a severe stressor during his service on the HMAS Vendetta in 1969/70. The court held that the Tribunal’s failure to properly apply the law and consider the evidence had resulted in a decision that was unreasonable and could not be sustained. The court concluded that Mr Krause was entitled to a pension under the Veterans’ Entitlements Act 1986, as he had experienced a severe stressor during his service that had led to his psychiatric conditions.
Orders
Orders of the court
The decision under review is set aside and in substitution thereto, the Tribunal decides that Mr Krause “experienced a severe stressor” whilst serving on the HMAS Vendetta in 1969/70. The severe stressor that he experienced has led to his psychiatric conditions.
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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