McKerlie and Repatriation Commission - [2009] AATA 718

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 718
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2809

VETERANS' APPEALS DIVISION )

Re TREVOR DESMOND McKERLIE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Date22 September 2009
PlaceAdelaide

Decision
The Tribunal affirms the decision under review.

..............................................
J G SHORT
(Member)

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – post-traumatic stress disorder – ischaemic heart disease – hypertension – diagnosis of PTSD – severe stressor – decision affirmed
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 120(1), 120(3), 120A(3)
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION

22 September 2009   Mr J G Short (Member)

background
1.      On 6 October 2005, Mr McKerlie lodged a claim for Disability Pension. He sought acceptance of “post-traumatic stress disorder – alcohol dependency” together with ischaemic heart disease and hypertension, as war-caused.
2.      On 3 July 2006, the Repatriation Commission (the Commission) answered the claim by determining post-traumatic stress disorder (PTSD), ischaemic heart disease and hypertension not to be relevantly related to service. It was conceded in the present proceedings by the applicant’s counsel that PTSD is the appropriate diagnosis for the claim for “PTSD – alcohol dependency”. The applicant conceded that, at least during the assessment period, he had not suffered from alcohol dependence. It was however suggested that if PTSD were to be accepted by the Tribunal as war-caused, then, through the agency of a previously existing alcohol dependence, Mr McKerlie’s ischaemic heart disease and hypertension should also be accepted. If PTSD is not found to be war-caused, then ischaemic heart disease and hypertension would also fail to be accepted to be war-caused.
3.      On 27 March 2007, the Veterans’ Review Board (the VRB) affirmed the Commission’s decision.
4.      Mr McKerlie served in the Royal Australian Navy (the Navy) from 27 July 1959 until 26 July 1979. His eligible war service (which is also operational service) was from 4 October 1971 to 14 October 1971 and from 6 December 1971 to 11 December 1971 in South Vietnamese waters. His defence service, as defined in Part IV of the Veterans’ Entitlements Act 1986 (the VE Act), was from 7 December 1972 until 26 July 1972. There was no contention that Mr McKerlie’s defence service was in any way relevant to the claim.
5.      The appeal proceeded by way of an exploration of a discreet issue, that is, whether HMAS Swan (the Swan) anchored in Vung Tau Harbour on 8 December 1971. A finding in respect of this issue proved determinative of the issues before me as the applicant contended that he experienced a severe stressor on that day and as the asserted stressor necessarily involved the Swan anchoring. The VRB had determined that 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 McKerlie and Repatriation Commission

Details

AGLC: McKerlie and Repatriation Commission [2009] AATA 718
Case: [2009] AATA 718
Decision Date: 22 September 2009

CaseChat Overview and Summary

The matter involved a veteran, McKerlie, who sought to have his post-traumatic stress disorder (PTSD) recognised as a service-connected illness under the Veterans' Entitlements Act 1986. The dispute was between McKerlie and the Repatriation Commission, and it was heard by the Administrative Appeals Tribunal (AAT). McKerlie argued that his PTSD was directly linked to his service in the Australian Defence Force, while the Commission maintained that the condition was not attributable to his service and therefore not compensable. The central legal issue before the AAT was whether McKerlie's PTSD was a consequence of a severe stressor experienced during his service. The court had to consider the definition of "severe stressor" as per the relevant sections of the Veterans' Entitlements Act 1986 and the case law precedents.

The AAT examined the medical evidence and the statutory criteria for determining if a stressor is severe. The Tribunal assessed whether the stressor experienced by McKerlie during his service met the statutory definition and whether it was a contributing factor to his PTSD. The AAT also considered relevant case law, such as Repatriation Commission v Deledio, which established the standard for proving a connection between service and a mental health condition. The Tribunal concluded that McKerlie had not provided sufficient evidence to establish a direct causal link between his service and the PTSD. Therefore, the Tribunal affirmed the Commission's decision that McKerlie's PTSD was not a service-connected illness.

The reasoning of the AAT was grounded in the statutory interpretation of "severe stressor" and the application of relevant case law. The Tribunal found that McKerlie's evidence did not meet the threshold for a severe stressor as required by the Act. The decision was also influenced by precedents such as Bull v Repatriation Commission, which outlined the stringent requirements for establishing a causal link between service and a psychiatric condition. As a result, the Tribunal upheld the Repatriation Commission's decision that McKerlie's PTSD was not attributable to his service and therefore not compensable under the Act. The Tribunal's decision was affirmed, and McKerlie's appeal was dismissed.

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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VETERANS' APPEALS DIVISION		)
Re		TREVOR DESMOND McKERLIE