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…
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CaseChat Overview and Summary
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.
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