McKay and Repatriation Commission

Case [2008] AATA 1114


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/1301

VETERANS' APPEALS  DIVISION )
Re IAN McKAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Dr S H Toh, Member

Date15 December 2008

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s post traumatic stress disorder and alcohol dependence are war-caused as defined in section 9 of the Veterans’ Entitlements Act 1986 with effect from 17 July 2003. The matter is remitted to the Respondent for assessment.

..................[sgd]......................

Ms N Isenberg
  Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – claim for disabilities arising out of operational service –  war-caused disease – PTSD – alcohol dependence – applicant suffered a severe stressor – Tribunal accepts diseases are war-caused – decision under review set aside

Veterans’ Entitlements Act 1986 – Sections 9, 13, 120, 120A, 196B

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 65 ALD 609

Lees v Repatriation Commission (2002) 125 FCR 331

Bull v Repatriation Commission (2001) 66 ALD 271

Hardman v Repatriation Commission (2004) 82 ALD 433

Elliott v Repatriation Commission (2002) 73 ALD 377

Repatriation Commission v Bey (1997) 79 FCR 364

Youngnickel v Repatriation Commission [2004] FCA 1691

Repatriation Commission v Hill [2002] FCAFC 192

Bushell v Repatriation Commission (1992) 175 CLR 408

Stoddart v Repatriation Commission (2003) 74 ALD 366

Repatriation Commission v Stoddart (2003) 134 FCR 392

Woodward v Repatriation Commission (2003) 131 FCR 473

Delahunt y Repatriation Commission [2004] FCA 309

Repatriation Commission v Cornelius [2002] FCA 750

Statement of Principles concerning Posttraumatic Stress Disorder: No. 5 of 2008

Statement of Principles concerning Post traumatic Stress Disorder: No. 3 of 1999, as amended by No. 54 of 1999

Statement of Principles concerning Alcohol Dependence and Alcohol Abuse: No. 17 of 2008 

Statement of Principles concerning Alcohol Dependence or Alcohol Abuse: No. 76 of 1998

REASONS FOR DECISION

15 December 2008 Ms N Isenberg, Senior Member
Dr S H Toh, Member          

BACKGROUND

1.      Mr McKay served in the Royal Australian Navy between 27 July 1963 and 25 July 1972.  He had a number of short periods of “operational service” as defined in the Veterans’ Entitlements Act 1986 (“the Act”).  In particular, he served aboard HMAS Vendetta for periods from 20 September to 3 October 1965 and 25 May to 11 June 1966, while it undertook escort duties to HMAS Sydney en route to Vietnam.

2.      One of his postings prior to his operational service was to HMAS Voyager (the sister ship to HMAS Vendetta) during the time of its collision with HMAS Melbourne.

3.      Mr McKay contends that his claimed condition of post traumatic stress disorder (PTSD) either arose or was materially contributed to by his suffering a severe stressor while aboard HMAS Vendetta.  Alternatively, he suffered PTSD as a result of his HMAS Voyager experience, which was aggravated by a severe stressor while aboard HMAS…

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Details
AGLC
McKay and Repatriation Commission [2008] AATA 1114
Case
[2008] AATA 1114
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Repatriation Commission v McKay was heard and determined. The applicant, Mr. McKay, sought a review of a decision by the Repatriation Commission, which had found that certain disabilities he suffered from were not war-caused and therefore not eligible for compensation under the Veterans’ Entitlements Act 1986. The disabilities in question were posttraumatic stress disorder (PTSD) and alcohol dependence, both of which the applicant claimed arose from his operational service. The Repatriation Commission had determined that while the applicant had experienced a severe stressor during his service, it was not of the type that could reasonably be expected to cause PTSD or alcohol dependence.

The legal issues before the court were whether the Tribunal had correctly applied the law in determining that the applicant's disabilities were not war-caused. Specifically, the court had to consider the relevant statutory provisions and the applicable statements of principles concerning PTSD and alcohol dependence. The applicant argued that the Tribunal had erred in its assessment of the evidence and its application of the relevant legal criteria. The Repatriation Commission contended that the Tribunal's decision was correct and should be upheld.

In reviewing the decision, the court found that the Tribunal had not properly applied the relevant legal criteria in assessing whether the applicant's disabilities were war-caused. The court noted that the Tribunal had not adequately considered the evidence of the applicant's severe stressor during service and had not properly applied the criteria in the Statements of Principles. The court held that the Tribunal's decision was therefore flawed and set it aside. In its place, the court found that the applicant's PTSD and alcohol dependence were indeed war-caused, as defined by section 9 of the Veterans’ Entitlements Act 1986, with effect from 17 July 2003.

The court remitted the matter back to the Repatriation Commission for reassessment in light of the court's findings. The decision under review was set aside, and the Tribunal was directed to decide that the applicant’s posttraumatic stress disorder and alcohol dependence were war-caused. The matter was to be remitted to the Repatriation Commission for assessment of the applicant’s entitlements.

Orders

Orders of the court

The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s post traumatic stress disorder and alcohol dependence are war-caused as defined in section 9 of the Veterans’ Entitlements Act 1986 with effect from 17 July 2003. The matter is remitted to the Respondent for assessment.

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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