McClure and Repatriation Commission - [2000] AATA 292

CATCHWORDS – VETERANS' AFFAIRS – entitlement to pension – whether veteran's impairment resulted from his serious default (s. 9(4)) – whether veteran drove under the influence of alcohol or drugs – whether serious default with reference to standards prevailing at time of incident – whole of circumstances relevant – decision set aside.

Insurance Contracts Act 1984 – s 66,
Road Traffic Act 1961 (SA)
Traffic Act 1949 – s 16
Transport Act 1960 (Qld)
Veterans' Entitlements Act 1986 – ss 9, 13, 70

Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89; [1992] 2 QdR 25
Doyle v Rowbottom [1991] SASC 2747, 8 March, 1991
Ferriday v Repatriation Commission (1996) 42 ALD 526; (1996) 24 AAR 29; (1996) 69 FCR 521; (1996) 150 ALR 67
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155; (1982) 56 ALJR 307; (1982) 40 ALR 45
McPherson v Repatriation Commission (1989) 87 ALR 275; (1989) 10 AAR 142
Repatriation Commission v Hayes (1982) 43 ALR 216; (1982) 5 ALD 8; (1982) 64 FLR 423
Repatriation Commission v Levi (1994) 33 ALD 79; (1994) 61 FCR 189
Rothwell v Caverswall Stone Co. Ltd [1944] 2 All ER 350

DECISION AND REASONS FOR DECISION [2000] AATA 292

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/329
GENERAL ADMINISTRATIVE DIVISION      )

Re JEFFREY RAYMOND McCLURE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 14 April, 2000

Place Brisbane

Decision The Tribunal:

1.sets aside the decision of the respondent dated 11 September, 1998 and affirmed by a decision of the Veterans' Review Board dated 8 February, 1999; and
2.substitutes a decision that the applicant's cervical-spondylosis is a war-caused disease within the meaning of s. 9 of the Veterans' Entitlements Act 1986.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 17 March, 1999, the applicant, Mr Jeffrey Raymond McClure, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 11 September, 1998. That decision had been affirmed by a decision of the Veterans' Review Board ("VRB") dated 8 February, 1999. The decision had been to reject Mr McClure's claim that his cervical-spondylosis was a war-caused condition within the meaning of the Veterans' Entitlements Act 1986 ("the VE Act").

At the hearing, Mr O'Gorman of counsel represented Mr McClure and Miss Ford of counsel represented the Commission. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a statement by Mr McClure and an extract from the Synopsis of Psychiatry (Kaplan, HI and Sadock, BJ, 6th edition, Williams & Wilkins) relating to psychoactive substances. Reference was also made during the hearing to Oral evidence was given by Mr McClure in support of his case.

THE ISSUE

The issue in this case is whether Mr McClure's cervical-spondylosis "resulted from … [his] serious default" as that expression is used in s. 9(4) of the…

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 McClure and Repatriation Commission

Details

AGLC: McClure and Repatriation Commission [2000] AATA 292
Case: [2000] AATA 292
Decision Date: 14 April 2000

CaseChat Overview and Summary

The case of McClure and Repatriation Commission was heard by the Administrative Appeals Tribunal (AAT) in Australia. The applicant, Mr Jeffrey Raymond McClure, challenged a decision by the Repatriation Commission, which was affirmed by the Veterans' Review Board, to reject his claim that his cervical-spondylosis was a war-caused condition within the meaning of the Veterans' Entitlements Act 1986. The issue at hand was whether Mr McClure's cervical-spondylosis "resulted from … [his] serious default" as defined in s. 9(4) of the Act. The Tribunal found that Mr McClure's cervical-spondylosis was a war-caused disease and set aside the decision of the Repatriation Commission and the Veterans' Review Board. The Tribunal substituted a decision that the applicant's cervical-spondylosis is a war-caused disease within the meaning of s. 9 of the Veterans' Entitlements Act 1986.

The court examined the meaning of "resulted from" and "serious default" in the context of the Act. It found that a "serious default" was a failure to act that warranted severe condemnation, and the person's conduct was to be judged by reference to the circumstances and standards prevailing at the time the relevant events occurred. The issue of whether or not a veteran's incapacity from an injury or disease resulted from a serious default was to be decided according to the standard of proof set out in s. 120(4) of the Act, i.e. the standard of reasonable satisfaction.

In Mr McClure's case, the Tribunal was satisfied that he was in default in failing to maintain his motor vehicle in its correct course on the highway, but it was not satisfied that his default was serious. The Tribunal found that the accident did not result from any incapacity to drive per se but from the disorientation and confusion caused by his post-traumatic stress disorder (PTSD). The Tribunal concluded that Mr McClure's cervical-spondylosis did not "result from … [his] serious default" as that expression is used in s. 9(4) of the Act.

Orders