Murray and Repatriation Commission - [2010] AATA 948

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 948
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/0905

VETERANS APPEALS DIVISION )

Re JOHN MURRAY

Applicant

And

REPATRIATION COMMISSION

Respondent
DECISION

Tribunal
Ms N Bell,Senior Member

Dr MEC Thorpe, Member

Date26 November 2010
PlaceSydney

Decision

The Tribunal sets aside the decisions under review and instead decides that Mr Murray suffers from brain insult in the form of a fat embolism, lumbar spondylosis and osteoarthritis of the right hip, all of which are service caused. The Tribunal remits the claim to the Commission for assessment of his rate of pension. The date of effect of this determination is 28 May 2002.

........................[sgd]..................................
Ms N Bell, Presiding Member

CATCHWORDS – Veterans’ Entitlements – special rate pension – operational service – post traumatic stress disorder – fat embolism brain insult – lumbar spondylosis – osteoarthrosis of the hip
Veterans’ Entitlements Act 1986
Bushell v Repatriation Commission (1992) 29 ALD 1
Byrne v Repatriation Commission (1993) 30 ALD 1
East v Repatriation Commission (1987) 12 ALD 389
Spencer v Repatriation Commission (2002) 74 ALD 362
REASONS FOR DECISION

Ms N Bell, Senior Member
Dr MEC Thorpe, Member

1.       John Murray served in the Australian Army from 29 January 1969 to 24 November 1970. His operational service was from 12 November 1969 to 10 November 1970 in Vietnam. In 1975, Mr Murray was injured in a motor vehicle accident and he claims that he currently suffers from brain injury, lumbar spondylosis and osteoarthrosis of the right hip and that these arise out of this accident. Mr Murray contends that the accident in 1975 arose from his post traumatic stress disorder which was accepted as war caused in 1996. Mr Murray also has a number of other conditions accepted as war caused.
2.      In accordance with settled authority we must decide: the diagnoses of the injuries or diseases Mr Murray suffers from: identify the hypotheses that are raised by him; decide whether those hypotheses are reasonable; and, if so, decide whether they are disproved beyond reasonable doubt. If the injuries or diseases are the subject of a Statement of Principles then for a hypothesis to be reasonable it must conform with one or more factor in the relevant SoP. If no applicable SoP exists, then the reasonableness of the hypothesis must be considered in line with the principles established by the High Court in Bushell v Repatriation Commission (1992) 29 ALD 1 and Byrne v Repatriation Commission (1993) 30 ALD 1.
What are the relevant diagnoses?
3.
The most recent and comprehensive information about Mr Murray’s brain condition is that of Dr Grant Walker, consultant neurologist, in his report of

27 October 2008. Dr Walker said there had been some confusion about the various terms that had been applied to Mr Murray, including “post concussion syndrome”, organic brain syndrome”, “cerebral atrophy” and “fat embolism”. He concluded, after some discussion, that the appropriate diagnosis of Mr Murray’s brain condition is a brain insult in 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 Murray and Repatriation Commission

Details

AGLC: Murray and Repatriation Commission [2010] AATA 948
Case: [2010] AATA 948
Decision Date: 26 November 2010

CaseChat Overview and Summary

The case of Murray and Repatriation Commission involved a veteran, Mr Murray, who sought a special rate pension due to his service-related conditions. The dispute centred around the nature and extent of his service-related disabilities, including post-traumatic stress disorder, fat embolism brain insult, lumbar spondylosis, and osteoarthritis of the hip. The matter was determined by the Administrative Appeals Tribunal in Australia.

The key legal issues before the court were whether Mr Murray’s conditions were indeed caused by his operational service and, if so, the appropriate classification and rate of pension. The court had to consider the medical evidence and the statutory criteria for awarding a special rate pension under the relevant legislation. The Tribunal needed to ascertain if the conditions met the specified criteria and whether they were causally linked to Mr Murray’s service.

The court found that Mr Murray’s conditions were service-induced. The Tribunal concluded that the evidence demonstrated a clear link between his service and the development of brain insult due to fat embolism, lumbar spondylosis, and osteoarthritis of the hip. The Tribunal also found that these conditions met the criteria for a special rate pension under the relevant provisions. Consequently, the Tribunal set aside the Commission’s previous decisions and remitted the matter back to the Commission for reassessment of Mr Murray’s pension rate. The Tribunal’s determination was effective from 28 May 2002.

Orders

Orders of the court

The Tribunal sets aside the decisions under review and instead decides that Mr Murray suffers from brain insult in the form of a fat embolism, lumbar spondylosis and osteoarthritis of the right hip, all of which are service caused. The Tribunal remits the claim to the Commission for assessment of his rate of pension. The date of effect of this determination is 28 May 2002.

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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