Pigdon and Repatriation Commission

Case [2002] AATA 66

DECISION AND REASONS FOR DECISION [2002] AATA 66

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2000/965

VETERANS' APPEALS DIVISION        )          
           Re      Brian Pigdon         
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Ms S M Bullock, Senior Member

Date4 February 2002

PlaceCoffs Harbour and Sydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor, the Tribunal decides that: (1) Mr Pigdon has a war-caused condition of post traumatic stress disorder pursuant to section 9 of the Veterans' Entitlements Act 1986. (2) Pension is assessed at 100 per cent of the General Rate from and including 30 March 1997.

..............................................
  Ms SM Bullock
  Senior Member
Catchwords
VETERANS' AFFAIRS - Entitlement - Operational Service - Reasonable Hypothesis – Diagnosis - Reasonable Satisfaction - Post Traumatic Stress Disorder - - Psychoactive Substance Abuse - Hypertension - Assessment - Extreme Disablement Adjustment.

Legislation
Veterans' Entitlements Act 1986 ss 5D, 9, 13, 22, 29, 31, 120(1), 120(3), 120(4), 120A.

Authorities
Repatriation Commission v Williams [2001] FCA 1195
Benjamin v Repatriation Commission (2001) 64 ALD 411
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re Saunders and Repatriation Commission [2001] AATA 727
Re Mulvaney and Repatriation Commission (AATA 272, 21 April 1998)
Re Powell and Repatriation Commission [2000] AATA 385
Re Maier and Repatriation Commission [2001] AATA 117
Re Repatriation Commission and Freeman [2000] AATA 727
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Budworth (2001) 33 AAR 476
Meehan v Repatriation Commission (2001) 64 ALD 366
McKenna v Repatriation Commission (1999)  86 FCR 144
Gorton v Repatriation Commission (2001) 63 ALD 723
Connors v Repatriation Commission (2000) 59 ALD 61

REASONS FOR DECISION

4 February 2002      Ms S M Bullock, Senior Member             

  1. This is an application for review by the Applicant, Mr Brian Pigdon, of a decision of the Veterans' Review Board ("the Board") dated 2 May 2000 (T27) which affirmed the Repatriation Commission decisions of:

a)24 September 1997, which refused a claim for hypertension with heart failure and post traumatic stress disorder and assessed pension at 50 per cent of the General Rate (T2).

b)        24 October 1998, which refused the claim for obesity and psychoactive                 substance abuse or dependence (T3).

  1. It should be noted that on 22 December 1998, pursuant to section 31 of the Veterans' Entitlements Act 1986, the condition of ischaemic heart disease was determined to be war-caused within the meaning of section 9 of the Veterans' Entitlements' Act 1986 with effect from 30 March 1997.  Pension was increased at that time to 90 per cent of the General Rate with effect from 30 March 1997 (T26).

  2. A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Coffs Harbour on 16 August 2001 and resumed in Sydney on 24 August 2001. Mr Pigdon provided oral evidence to the Tribunal and was represented by Mr B Winship, Solicitor. The Respondent, the Repatriation Commission ("the Commission"),…

Continue reading Pigdon and Repatriation Commission

Sign in free to access the full text

Details
AGLC
Pigdon and Repatriation Commission [2002] AATA 66
Case
[2002] AATA 66
Decision Date

CaseChat Overview and Summary

The case of Pigdon and Repatriation Commission involved a veteran seeking an Extreme Disablement Adjustment under Section 22 of the Act. The dispute centered on whether the veteran qualified for this adjustment, given his service history and health conditions. The Court of Appeal was tasked with determining if the veteran had met the criteria for the Extreme Disablement Adjustment, including being at least 65 years old, having a 100% pension assessment, and an impairment rating of at least 70 points. Additionally, the court had to consider whether the veteran’s service and subsequent health conditions, including post-traumatic stress disorder and psychoactive substance abuse, were sufficiently linked to his operational service to warrant the adjustment.

The legal issues before the court involved interpreting the statutory criteria for the Extreme Disablement Adjustment and assessing whether the veteran's claimed health conditions were reasonably attributable to his service. The court had to determine if there was sufficient evidence to reasonably satisfy it that the veteran's conditions were related to his military service, particularly in the context of the traumatic experiences he had during his deployment. This involved examining the veteran's statements and the evidence provided regarding his experiences and the impact they had on his health.

The court found that the veteran had sufficiently demonstrated that his claimed health conditions were reasonably attributable to his operational service. It accepted the veteran's account of his experiences, including guarding Japanese prisoners and hearing stories of atrocities, as sufficient to establish a reasonable hypothesis linking his health conditions to his service. The court was reasonably satisfied that the veteran’s experiences and the psychological impact they had were linked to his service. Consequently, the court upheld the Tribunal's decision that the veteran was eligible for the Extreme Disablement Adjustment.

The court ordered that the veteran be granted the Extreme Disablement Adjustment, affirming the previous determinations that he met the statutory criteria. The decision highlighted the importance of establishing a link between the veteran's service and his health conditions to qualify for the adjustment, and it reinforced the need for a thorough assessment of the evidence provided.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 22 of the Act deals with the Extreme Disablement Adjustment and it requires that veterans be at least 65 years of age, have pension assessed at 100 per cent of the General Rate and not be eligible for either the Special or Intermediate Rates. The veteran must also have an impairment rating of at least 70 points with a lifestyle rating of at least 6 points.Evidence of Mr Pigdon Mr Pigdon, whose date of birth is 13 October 1926, stated that he was 18 years old when he joined the army. He had initial training at Cowra involving learning about rifles and hand grenades and marching. Mr Pigdon later continued his training at Canungra, where training was nearer to "war conditions" and live ammunition was used with machine guns. Mr Pigdon was then sent overseas, landing in Simpson Harbour, Rabaul. He was assigned to an eight-soldier tent. Mr Pigdon's first duties involved guarding a group of ten Japanese prisoners. There were day and night duties, with the day duty occurring between about 8am to 5pm. Mr Pigdon carried out his duty using a rifle but he was not issued with ammunition. The Japanese prisoners had one soldier in charge who also spoke English. There were a number of such groups of Japanese prisoners being guarded by Australian soldiers at various locations. Mr Pigdon told the Tribunal that the prisoners would usually "stand around" in a group and Mr Pigdon would keep an eye on them. He stated that he was very wary and did not trust the Japanese. On guard duty at night, Mr Pigdon was fearful because visibility was extremely low and he did not know what was going to happen next. Guarding the prisoners at night therefore was very different to day duty. Even though the war was over, Mr Pigdon stated that the Japanese were very fanatical and most unhappy about surrender. Mr Pigdon recalled that on his first day in Rabaul there was a dreadful stench. He was told that it arose from piles of dead Japanese who had suicided rather than surrender. When Mr Pigdon arrived in Rabaul, there were war crime trials being held. Although Mr Pigdon did not attend the trials, he told the Tribunal that he had heard stories about Japanese atrocities and brutality committed on Allied troops including Australian soldiers. In this regard, Mr Pigdon told of the stories of the Japanese torturing of Australian and other soldiers and of starvation that was rife in the prisoner of war camps. It was in this context that a request was made for volunteers to form a firing squad to execute some Japanese prisoners. Mr Pigdon volunteered to be part of that firing squad. As it turned out however, the firing squad was not required because the prisoners were hung instead. Mr Pigdon had been given photographs of two of the Japanese soldiers to be executed and he has retained those photos to this day (Exhibits A2 and A3). Mr Pigdon told the Tribunal that he had specifically heard of the Sandakan Prison Camp where many Australian, British and Indian soldiers were incarcerated. He told the Tribunal that during his tour of duty in Rabaul, he was not directly threatened by the Japanese prisoners nor had he ever shot at or killed anyone.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.