ROSS STEWART and REPATRIATION COMMISSION - [2012] AATA 56

[2012] AATA 56

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/0549

Re

ROSS STEWART

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
G. D. Friedman, Senior Member

Date 2 February 2012

Place Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that the sleep apnoea suffered by Mr Stewart is war-caused with effect from 5 September 2008.

.............................[sgd]...............................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – sleep apnoea – obesity – body mass index
Veterans' Entitlements Act 1986 ss 9, 120(1)
Bull v Repatriation Commission (2001) 188 ALR 756
East v Repatriation Commission (1987) 16 FCR 517
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
McKenna v Repatriation Commission [1993] FCA 323
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
G. D. Friedman, Senior Member
2 February 2012

Ross Stewart served in the Australian Army from 23 October 1968 to 27 October 1971. His service in Vietnam from 30 August 1969 to 20 August 1970 constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Stewart is in receipt of a disability pension at 100 per cent of the general rate as a result of a number of war-caused medical conditions, including alcohol abuse and diabetes mellitus. On 5 December 2008 he lodged a claim for incapacity from sleep apnoea arising from weight gain due to alcohol abuse and diabetes mellitus. His claim was rejected by the respondent and the Veterans' Review Board (VRB). Mr Stewart is seeking review of the decision.
LEGAL FRAMEWORK
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Stewart has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11).…

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 ROSS STEWART and REPATRIATION COMMISSION

Details

AGLC: ROSS STEWART and REPATRIATION COMMISSION [2012] AATA 56
Case: [2012] AATA 56
Decision Date

CaseChat Overview and Summary

The matter before the Tribunal involved Ross Stewart and the Repatriation Commission, with the dispute centering around the claim that Stewart's sleep apnoea was caused by his service in the Australian Defence Force. The Tribunal was tasked with determining whether Stewart's condition met the criteria for a war-related injury under the relevant legislation. The case was heard and determined by the Administrative Appeals Tribunal of Australia.

The primary legal issue the Tribunal had to resolve was whether Stewart's sleep apnoea arose from a war-caused injury, specifically whether it was caused or contributed to by his service. This involved examining the evidence related to the onset and progression of Stewart's condition, including medical records and expert testimony. A critical aspect was determining the accuracy of height measurements taken at different times, which affected the calculation of his Body Mass Index (BMI) and the relevance of obesity as a contributing factor.

The Tribunal concluded that there was doubt regarding the accuracy of the height measurement taken on 21 May 1998. If the measurement of 172 cm was accurate, Stewart's BMI would have been 30.3, which satisfied a specific criterion related to obesity. Given the uncertainty about the height measurement and the consistency of subsequent measurements, the Tribunal found it could not be satisfied beyond reasonable doubt that Stewart was not obese at the time of clinical onset of sleep apnoea. Consequently, the Tribunal determined that Stewart's condition was likely war-caused, satisfying the criteria under the Act. The Tribunal set aside the original decision and ruled that Stewart's sleep apnoea was war-caused, effective from 5 September 2008.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After considering all the material the Tribunal concludes that on 21 May 1998 Mr Stewart's height, if measured and recorded accurately, might have been 172cm rather than 173cm recorded on 4 June 1998 and 23 June 1998, which would have resulted in a BMI of 30.3 and would have satisfied factor 5(b) of SoP No. 13 of 2005. Therefore because of the doubt about the accuracy of the measurement of 173cm fourteen days after the time of clinical onset in view of the consistency of subsequent measurements, the Tribunal cannot be satisfied that at the time of clinical onset of sleep apnoea Mr Stewart was not obese. Therefore under s 120(1) of the Act the Tribunal is not satisfied beyond reasonable doubt that Mr Stewart's incapacity did not arise from a war-caused injury, and Mr Stewart satisfies the fourth step and his claim must succeed. DECISION The Tribunal sets aside the decision under review and substitutes a decision that the sleep apnoea suffered by Mr Stewart is war-caused with effect from 5 September 2008.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/0549
Re	ROSS STEWART
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	G. D. Friedman, Senior Member
Date	2 February 2012
Place	Melbourne