Mackey and Repatriation Commission - [2001] AATA 749

DECISION AND REASONS FOR DECISION [2001] AATA 749

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/55

VETERANS' APPEALS DIVISION       )
           Re      LESLIE MAURICE MACKEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Mr G.A. Mowbray, Member

Date24 August 2001
PlaceCanberra

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension and medical treatment be determined on the basis that he suffers from PTSD which was war-caused.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)

CORRIGENDUM [2001] AATA 749

TribunalSenior Member J.A. Kiosoglous MBE
Mr G.A. Mowbray, Member

Date4 October 2001
PlaceAdelaide

Corrigendum

The decision of the Tribunal is to be amended to read as follows:

"The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension and medical treatment be determined on the basis that he suffers from PTSD which was war-caused with effect from 27 April 1998."

Paragraph 56 is to be amended to read as follows:

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - post-traumatic stress disorder - whether war-caused - whether diagnosis of PTSD exists - standard of proof
Veterans' Entitlements Act 1986 ss.14, 120, 120A, 196B
Statements of Principles Nos. 15 of 1994, 225 of 1995
Repatriation Commission v Cooke (1998) 160 ALR 17
Meehan v Repatriation Commission [2001] FCA 597
Benjamin v Repatriation Commission [2001] FCA 522
Repatriation Commission v Deledio (1998) 27 AAR 144

REASONS FOR DECISION

24 August 2001 Senior Member J.A. Kiosoglous MBE Mr G.A. Mowbray, Member

This is an application by Mr Leslie Maurice Mackey (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 14 January 2000 (T14) which affirmed upon review that part of a decision of a delegate of the respondent dated 7 November 1998 (T9) which rejected a claim for pension for incapacity from migraine on the grounds that the condition was not war-caused. The original delegate's decision (T9) also rejected the conditions of post-traumatic stress disorder (PTSD) and hypertension, but these were not the subject of review by the VRB when reviewing the migraine condition (T14). Prior to the hearing by this Tribunal for review of the decision of the VRB, the parties agreed that all conditions be the subject of review as considered by the delegate (T9). However, at the commencement of the hearing, Mr P. Crabb, solicitor for the applicant, indicated to the Tribunal that the only matter in issue to be considered was that of the condition of…

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 Mackey and Repatriation Commission

Details

AGLC: Mackey and Repatriation Commission [2001] AATA 749
Case: [2001] AATA 749
Decision Date: 24 August 2001

CaseChat Overview and Summary

The case of Mackey and the Repatriation Commission involved the applicant seeking a determination that his post-traumatic stress disorder (PTSD) was war-caused, entitling him to certain veterans' entitlements under the Veterans' Entitlements Act 1986. The dispute was adjudicated by the Administrative Appeals Tribunal (AAT). The central issue before the Tribunal was whether the applicant's PTSD was causally linked to his war service, a determination necessary to establish eligibility for disability pension and medical treatment under the Act.

The Tribunal examined the evidence and the criteria for establishing a causal link between the applicant's war service and his PTSD. The statutory provisions under consideration required the Tribunal to determine whether the applicant's PTSD was war-caused by applying the appropriate standard of proof, which was beyond reasonable doubt. The Tribunal needed to weigh the evidence presented and decide whether it was sufficient to satisfy the requisite standard of proof. In doing so, the Tribunal referred to relevant statements of principles and previous cases such as Repatriation Commission v Cooke, Meehan v Repatriation Commission, and Repatriation Commission v Deledio to guide its reasoning.

After careful consideration of the evidence, the Tribunal concluded that the applicant's PTSD was war-caused. The Tribunal found that there was no evidence that would allow it to conclude, beyond reasonable doubt, that the applicant's PTSD was not war-caused. The Tribunal noted that the applicant had experienced a significant stressor during his operational service, which occurred prior to the onset of his PTSD. Based on this, the Tribunal determined that it was not satisfied beyond reasonable doubt that the applicant's PTSD was not war-caused. Consequently, the Tribunal set aside the original decision and directed the respondent to reconsider the applicant's claim for disability pension and medical treatment on the basis that his PTSD was war-caused.

The Tribunal's decision was certified as a true copy of the reasons for the decision. The Tribunal's findings and orders were communicated to the parties involved, with the applicant represented by Mr P. Crabb and the Repatriation Commission represented by Ms P. Hook. The hearing took place on 10 July 2001, and the decision was rendered on 24 August 2001.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal is satisfied that the evidence points to a causal relationship between the applicant's war service and his PTSD. No evidence has been presented to the Tribunal which would allow it to be satisfied, beyond reasonable doubt, that the applicant's PTSD was not war-caused. The Tribunal finds that whilst on operational service the applicant experienced the stressor outlined earlier in these reasons and this stressor occurred prior to the clinical onset of PTSD. The Tribunal's considered view with respect to the reasonable hypothesis regarding PTSD is that it is not satisfied beyond reasonable doubt that that disease is not war-caused. Pursuant to sub-section 120(1) of the Act, the Tribunal determines that PTSD is a war-caused disease.decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension and medical treatment be determined on the basis that he suffers from PTSD which was war-caused.I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Mr G.A. Mowbray, MemberSigned: ........................(Signed)................................................ Personal AssistantDate/s of Hearing 10 July 2001 Date of Decision 24 August 2001Counsel for the Applicant Mr P. Crabb Solicitor for the Applicant Snedden Hall & Gallop Counsel for the Respondent Ms P. Hook Solicitor for the Respondent DVA

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.