Pickering and Repatriation Commission - [2005] AATA 736

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 736
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/401

VETERANS' APPEALS DIVISION
)

Re JOHN PICKERING

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott
Date3 August 2005
PlaceBrisbane

Decision The Tribunal sets aside the decision under review dated 11 December 2002, and substitutes for it a decision that the condition of osteoarthrosis of the left knee suffered by the applicant is a defence-caused injury. The date of effect is 2 July 2002.

..............................................
P McDermott
Senior Member

CATCHWORDS
VETERANS AFFAIRS - veteran’s entitlements - defence caused injury - injury sustained in travelling to workplace - osteoarthrosis of (left) knee – decision set aside
Veteran’s Entitlement Act 1986 sis 70(5)(b), 119, 120, 120A, 196(B)
Deledio v Repatriation Commission (1997) 25 AAR 396
Ball v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Keeley (2000) 31 AAR 150
Cook v Repatriation Commission [2000] FCA 1756
Forbes v Repatriation Commission (2000) 31 AAR 381
Harris v Repatriation Commission (2000) 31 AAR 270
REASONS FOR DECISION

3 August 2005 Senior Member P McDermott

1.      The applicant, who was born on 26 August 1943, has sought review of a decision made by a delegate of the respondent. The applicant is currently in receipt of a disability pension at 60% of the general rate.
Decision Under Review
2.      The decision was made by a delegate of the respondent on 11 December 2002 which determined a claim made by the applicant.
3.      In that decision the delegate determined that a claim for osteoarthrosis of the left knee that is suffered by the applicant was not defence caused.
4.      The Veterans’ Review Board affirmed the delegate’s decision on 22 January 2004.
Service Of Applicant
5.      The applicant served in the Australian Army from 10 July 1972 until 6 January 1985. His eligible war service in Vietnam is 23 September 1970 until 9 June 1971. The applicant also has defence service from 7 December 1972 until 6 January 1985.
Current Issue For Resolution
6.      The issue that has to be determined is whether the condition of osteoarthrosis of the left knee suffered by the applicant is defence caused.
Accepted Conditions
7.      The applicant has a number of war-caused accepted conditions: bilateral sensorineural hearing loss; bilateral tinnitus; chronic foot strain; and irritable bowel syndrome.
Non-accepted Conditions
8.      The applicant has a number of conditions which are not accepted as war-caused: tinea versicolor; osteoarthrosis of the right foot; bilateral pterygia; and bilateral pes planus.
Background
9.      There is no dispute that the applicant was injured in a motor vehicle accident on 18 May 1982.
10.     The applicant gave evidence of a motor vehicle accident in May 1982 when he was on the way to work. The applicant stated that when he was on his bike a car pulled out in front of him from a side road. He was unable to avoid a collision and hit the car. The applicant stated that he sustained some injuries…

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 Pickering and Repatriation Commission

Details

AGLC: Pickering and Repatriation Commission [2005] AATA 736
Case: [2005] AATA 736
Decision Date: 3 August 2005

CaseChat Overview and Summary

The case of Pickering and Repatriation Commission was brought before the Administrative Appeals Tribunal. The applicant, Mr. Pickering, sought a review of a decision by the Repatriation Commission that his condition of osteoarthrosis of the left knee was not a defence-caused injury, and therefore he was not entitled to certain veteran's entitlements. The dispute centred around whether the injury sustained by Mr. Pickering while travelling to his workplace was covered under the provisions of the Veteran’s Entitlement Act 1986.

The key legal issues that the Tribunal had to address were whether the injury was sustained in the course of service and whether it arose out of that service. The Tribunal considered relevant case law and statutory provisions, including sections 70(5)(b), 119, 120, 120A, and 196(B) of the Veteran’s Entitlement Act 1986. The decision in Deledio v Repatriation Commission, Ball v Repatriation Commission, Repatriation Commission v Keeley, Cook v Repatriation Commission, Forbes v Repatriation Commission, and Harris v Repatriation Commission were also taken into account.

The Tribunal found that Mr. Pickering's injury was indeed a defence-caused injury as it was sustained in the course of travel to his workplace, which was integral to his service. The Tribunal concluded that the injury arose out of his service, and therefore he was entitled to the veteran's entitlements for that condition. The Tribunal set aside the original decision and substituted it with a new decision recognising Mr. Pickering's condition as a defence-caused injury, effective from 2 July 2002.

Orders

Orders of the court

The Tribunal sets aside the decision under review dated 11 December 2002, and substitutes for it a decision that the condition of osteoarthrosis of the left knee suffered by the applicant is a defence-caused injury. The date of effect is 2 July 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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