POTTER and REPATRIATION COMMISSION - [2010] AATA 607

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 607
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1910

VETERANS' APPEALS DIVISION )

Re KEITH JOSEPH POTTER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice, Senior Member, Dr Roderick McRae, Member
Date17 August 2010
PlaceMelbourne

Decision The decision of the Veterans’ Review Board made on 31 March 2008 is affirmed.

...........(sgd) Egon Fice.............
Senior Member

VETERANS’ AFFAIRS – Royal Australian Air Force – eligible war service - disability pension – hypertension - hearing loss/tinnitus - pulmonary fibrosis – ischaemic heart disease - Veterans’ Review Board – standard of proof – alcohol consumption - clinical onset – war caused hypertension – alcohol consumption
Veterans’ Entitlements Act 1986(Cth) ss 7(1)(c), 9, 120, 120B,120(1), 120(2), 120(4), 196B(3), 196B(12), 180A(3)
Repatriation Act 1920
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Cornelius [2002] 69 ALD 250
Repatriation Commission v Smith (1997) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Re Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Roncevich v Repatriation Commission (2005) 222 CLR 115
Walsh v Rother District Council [1978] 1 ALL ER 510
Statements of Principles Instrument No 36 of 2003
Statements of Principles Instrument No 4 of 2004
Statements of Principles Instrument No 12 of 2008
REASONS FOR DECISION

17 August 2010 Mr Egon Fice, Senior Member

1.      Mr Keith Potter was born on 24 January 1926. He enlisted in the Royal Australian Air Force (RAAF) on 9 February 1944 for duration of the war and for a period of 12 months thereafter. He was discharged on 30 May 1946 without having had operational service as that expression is defined in the Veterans’ Entitlements Act 1986 (VE Act). His mustering was as an electrician. The Repatriation Commission (the Commission) accepts that Mr Potter had eligible war service as that expression is defined in s 7(1)(c) of the VE Act.
2.      On 27 February 2007 Mr Potter lodged a claim with the Department of Veterans’ Affairs for a disability pension. His claimed disabilities included hypertension, heart problems, hearing loss/tinnitus and pulmonary fibrosis. On 3 May 2007 a delegate of the Commission accepted Mr Potter’s claim for bilateral sensorineural hearing loss and bilateral tinnitus. The delegate determined that Mr Potter’s hypertension, ischaemic heart disease and pulmonary fibrosis were not causally related to his military service.
3.      Mr Potter sought review of the delegate’s decision by the Veterans’ Review Board (VRB). On 31 March 2008 the VRB affirmed the Commission’s decision. Although Mr Potter’s application to the Tribunal included a review of all three conditions rejected by the VRB, he subsequently advised the Tribunal that he no longer sought review of the VRB decision which refused to grant him a pension for his respiratory complaints.
4.…

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 POTTER and REPATRIATION COMMISSION

Details

AGLC: POTTER and REPATRIATION COMMISSION [2010] AATA 607
Case: [2010] AATA 607
Decision Date: 17 August 2010

CaseChat Overview and Summary

The case of Potter and the Repatriation Commission involves the applicant, Mr Potter, who sought a disability pension based on various health conditions he claimed were related to his war service in the Royal Australian Air Force. The matter was heard in the Federal Court of Australia. Mr Potter argued that his service led to hypertension, hearing loss, tinnitus, pulmonary fibrosis, and ischaemic heart disease. The Repatriation Commission disputed his claims, leading to a review by the Veterans’ Review Board, which ultimately affirmed the Commission’s decision to deny the pension.

The central legal issues in the case revolved around the standard of proof required to establish a causal link between Mr Potter’s health conditions and his war service. The court had to determine whether Mr Potter had met the threshold of proving, on the balance of probabilities, that his conditions were war-caused. This included examining the evidence regarding the clinical onset of his conditions and whether they were linked to his service. Another significant issue was the impact of Mr Potter’s alcohol consumption on his claimed conditions and whether this should affect the determination of his eligibility for the pension.

The court examined the evidence presented by Mr Potter, including medical reports and expert opinions, to assess whether his conditions were indeed war-caused. The court noted that while Mr Potter had provided extensive evidence, it was insufficient to establish the necessary causal link on the balance of probabilities. The court highlighted that Mr Potter’s hypertension, which he claimed was caused by his war service, was also significantly influenced by his alcohol consumption, thereby complicating the determination of causation. Additionally, the court found that the evidence did not sufficiently support the claim that his other conditions were directly attributable to his service. Consequently, the court affirmed the Veterans’ Review Board’s decision, upholding the Repatriation Commission’s denial of the disability pension.

Orders

Orders of the court

The decision of the Veterans’ Review Board made on 31 March 2008 is affirmed.

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		KEITH JOSEPH POTTER