Marr and Repatriation Commission - [2011] AATA 4

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 4
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1383

VETERANS' APPEALS DIVISION )

Re GRAHAM MARR

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Dr K S Levy RFD
Date11 January 2011
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
......................[Sgd]........................
Senior Member

Veteran’s Entitlements – Eligible defence service – Applicant claiming condition of either Intervertebral Disc Prolapse or Cervical Spondylosis – Causation – Decision under review affirmed
Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
Briginshaw v Briginshaw (1938) 60 CLR 336
Fox v Percy (2003) 197 ALR 201
Makita v Sprowles (2001) 52 NSWCA 305
Mason v Repatriation Commission (2000) FCA 1409
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
Roncevich v Repatriation Commission (2005) 218 ALR 733
REASONS FOR DECISION

11 January 2011 Senior Member Dr K S Levy RFD

INTRODUCTION
1.      The present applicant, Mr Marr, seeks a review of a previous decision determined on 5 May 2009 of the applicant’s claimed condition of Cervical Spondylosis. That claim was rejected although Mr Marr’s disability pension was increased to 80% of the General Rate. That decision was reviewed under s 31 of the Veteran’s Entitlements Act 1986 (“The Act”) and on 1 October 2009, a delegate of the Repatriation Commission determined that the diagnosis should be amended to be that of Intervertebral Disc Prolapse at C5-C6[1]. That determination was reviewed by the Veteran’s Review Board on 11 March 2010 and affirmed[2].
[1] Folio 111 of exhibit 1
[2] Folios 130 – 136 of exhibit 1
2.      Mr Marr now appeals his unsuccessful claims to this Tribunal.
ISSUES FOR DETERMINATION
3.      The questions for determination of the Tribunal are:
(a)What is the most appropriate diagnosis for the claimed condition of Mr Marr, that is, Intervertebral Disc Prolapse or Cervical Spondylosis? and
(b)Is either condition defence caused?

STANDARD OF PROOF
4.      As the applicant’s case is based on eligible defence service and not operational service, the statutory standard of proof is that specified in s 120(4) of the Act, that is, the standard of reasonable satisfaction.
FACTS
5.      The applicant served in the Royal Australian Navy from 7 August 1973 until he was discharged on 16 December 1978. He gave evidence that he was involved in a motor vehicle accident on 2 January 1978 when he was returning from “long leave” in Adelaide and was due back at HMAS Torren at 1200 hours on 3 January 1978[3]. There is evidence that he was travelling officially and independent evidence of a police accident report is available[4].
[3] Folio 1 of T4
[4] Folio 2 of T4
6.      Mr Marr has no recollection of the accident. According to the decision under review, he had no recollection of the next four days[5]. He told this Tribunal he had no recollection for two months after the accident and believes this was because of the effects of Pethidine…

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 Marr and Repatriation Commission

Details

AGLC: Marr and Repatriation Commission [2011] AATA 4
Case: [2011] AATA 4
Decision Date: 11 January 2011

CaseChat Overview and Summary

The case of Marr and Repatriation Commission involved an applicant, Marr, who sought to have certain medical conditions recognised as eligible for veteran's entitlements. Marr argued that he suffered from either Intervertebral Disc Prolapse or Cervical Spondylosis, which he claimed were caused by his service in the armed forces. The dispute was heard by the Administrative Appeals Tribunal, which was tasked with reviewing a decision made by the Repatriation Commission.

The primary legal issues before the Tribunal were whether Marr's medical conditions were attributable to his service and, if so, whether this link was sufficient to qualify for veteran's entitlements. The Tribunal had to consider the evidence presented regarding the onset, progression, and nature of the conditions, as well as any relevant medical and service records. Additionally, the Tribunal needed to assess whether the conditions were a result of the service or were exacerbated by it, and if they met the criteria for eligibility under the relevant legislation.

In reaching its decision, the Tribunal carefully examined the medical evidence provided by Marr and the Repatriation Commission. It found that while Marr did suffer from the claimed conditions, there was insufficient evidence to establish a causal link between these conditions and his service in the armed forces. The Tribunal concluded that the conditions could have arisen from other factors unrelated to his service, and thus, the decision of the Repatriation Commission to deny the claim was affirmed.

The Tribunal's decision was based on the lack of clear evidence linking the conditions to the service, and therefore, the Tribunal upheld the original decision of the Repatriation Commission. The Tribunal's affirmation of the decision meant that Marr's claim for veteran's entitlements was not successful.

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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