Saunders and Repatriation Commission - [2001] AATA 727

DECISION AND REASONS FOR DECISION [2001] AATA 727

ADMINISTRATIVE APPEALS TRIBUNAL )

) N2000/692

VETERANS' APPEALS DIVISION       )
           Re      RICHARD GEORGE SAUNDERS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr P Lynch Member

Date21 August 2001
PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 19 March 1998 as affirmed by the Veterans' Review Board on 4 April 2000 and decides that Mr Richard George Saunders' cervical spondylosis with intervertebral disc lesion was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' entitlements - eligible service - whether cervical spondylosis followed intervertebral disc lesion claimed to have been caused in aircraft accident – no documentary evidence of aircraft accident – application of s 119 re paucity of records - Respondent and Tribunal accepted evidence aircraft landing incident had occurred – Tribunal not satisfied aircraft incident caused either intervertebral disc lesion or permanent ligamentous instability - decision affirmed

LEGISLATION
Veterans Entitlements Act 1986 ss 9, 120(4), 120A

CASE LAW
Repatriation Commission v Keeley (2000) 98 FCR 108

STATEMENT OF PRINCIPLES
Statement of Principles Instrument No.131 of 1996 as amended by No.93 of 1997 concerning Intervertebral Disc Prolapse
Statement of Principles Instrument No.162 of 1996 concerning Cervical Spondylosis

REASONS FOR DECISION

21 August 2001 Ms G Ettinger Senior Member Dr P Lynch Member

The decision under review before the Administrative Appeals Tribunal, ("the Tribunal") was the decision of the Repatriation Commission dated 19 March 1998 (T21) as affirmed by the Veterans' Review Board of 4 April 2000 (T24) which found that Mr Richard George Saunders' cervical spondylosis with intervertebral disc lesion was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act").
The Applicant, Mr Saunders, was represented by Ms J Buss, solicitor of the Legal Aid Commission, and the Respondent by its advocate, Ms P Hook.
The parties agreed that should the Applicant be successful, the earliest date of effect in this matter was 6 January 1998, and that the matter of assessment would, if applicable, be referred to the Respondent.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was whether:
· Mr Saunders' condition of cervical spondylosis with intervertebral disc lesion was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

LEGISLATION

The relevant legislation in this matter was the Veterans' Entitlements Act 1986, in particular sections 9, 120A and 120(4). Section 9 provides:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
As Mr Saunders had served on eligible service between 25 March 1944 and 25 July…

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 Saunders and Repatriation Commission

Details

AGLC: Saunders and Repatriation Commission [2001] AATA 727
Case: [2001] AATA 727
Decision Date: 21 August 2001

CaseChat Overview and Summary

The case of Saunders and Repatriation Commission involves Mr Richard George Saunders, who applied for a determination of whether his cervical spondylosis with intervertebral disc lesion was war-caused, under section 9 of the Veterans' Entitlements Act 1986. The case was heard by the Administrative Appeals Tribunal, which affirmed the decision of the Repatriation Commission that the condition was not war-caused. The Tribunal was not satisfied that the condition was caused by an aircraft accident that Mr Saunders claimed to have experienced during his service in the Royal Australian Air Force.

The legal issues in the case involved whether there was sufficient evidence to establish that Mr Saunders' condition was caused by an aircraft accident, and if so, whether that accident was war-caused. The Tribunal considered whether the lack of documentary evidence of the aircraft accident could be overcome by Mr Saunders' oral evidence, and if the condition was indeed caused by the accident, whether it was also war-caused.

The Tribunal held that although Mr Saunders provided oral evidence of the aircraft accident and its circumstances, there was no documentary evidence to support his claim. The Tribunal noted that the Repatriation Commission and Veterans' Review Board had previously considered Mr Saunders' claim and found that there was no evidence of the aircraft accident. The Tribunal also noted that the Respondent and Tribunal accepted that an aircraft landing incident had occurred, but were not satisfied that the incident caused either the intervertebral disc lesion or permanent ligamentous instability. The Tribunal held that the evidence did not establish that Mr Saunders' cervical spondylosis with intervertebral disc lesion was war-caused pursuant to section 9 of the Act.

The Tribunal affirmed the decision of the Repatriation Commission and Veterans' Review Board, and decided that Mr Saunders' cervical spondylosis with intervertebral disc lesion was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Oral evidence was given by the Applicant, Mr Richard Saunders and Dr Adam Newcombe, Neurosurgeon.EVIDENCE OF THE APPLICANT - MR RICHARD GEORGE SAUNDERS Mr Saunders, whose date of birth was 21 January 1926, and whose statement of 9 March 2001 with attachments was Exhibit A1, gave oral evidence before the Tribunal. He said that he left school after matriculation and commenced work in a bank. He then enlisted in the Royal Australian Air Force ("RAAF") on 24 March 1944 at the age of 18 years, and after initial training, was posted to Number 10 Elementary Flying Training School ("EFTS") at Temora in New South Wales. Mr Saunders recalled that his experiences as a student pilot were quite stressful, and detailed the long hours and demanding days and nights spent in training sessions. Mr Saunders told the Tribunal that as a student pilot he was involved in a crash landing of a Tiger Moth on 1 February 1945 (a date he deduced from consulting his log book), and described how it happened. The Tribunal obtained a transcript of the hearing and quotes as follows:"On the final approach leg my instructor said that he would take over … that he would effect a precautionary landing as he was in a hurry to – for me to do another circuit before my allotted hour was up. Having done so I took my hands and feet off the controls and I relaxed it and lent back on the left hand side. … The next thing I knew was this almighty thump and my head went down between my knees and I can remember the compass box … that instrument at the bottom of the instrument panel which just out from the instrument panel, and I can remember that flashing by, that I just missed it." Mr Saunders said that although he was wearing a full harness/seatbelt at the time of the accident, he was able to put his head down near his knees. He explained that:"… you had sufficient room to move when you slackened your harness off … the two straps, sort of, moved I suppose about that far from being very tight to being very loose and you had enough movement to move around the cockpit and bend and do whatever but then again on the impact the weight of your upper body would've probably taken up all the slack of that and you could have moved inside the harness if you follow – down like that." Mr Saunders said on exiting the aircraft, he observed that the undercarriage had collapsed, and that there was a 15 foot scar along the ground where the tail of the aircraft had hit the ground. Mr Saunders said that he either sat or lay down for a time before going to the flight hut for an interview on the circumstances of the crash landing. Mr Saunders informed the Tribunal that following this interview:"Flight Lieutenant Morely, the Flight Commander, came out and told me that it had been decided the accident wouldn't be recorded in the flight records. It would not be recorded in Flight Lieutenant Mile's log book, nor would it be recorded in my book. That I wasn't to discuss it with any other personnel, and that I didn't appear to be injured, there was no need for me to go to the MO."

Decision

Reasons for decision

Accordingly, although the Tribunal acknowledges that Mr Saunders believes his cervical spondylosis occurred as a result of the Tiger Mother landing, the Tribunal was unable to find that Mr Saunders' cervical spondylosis with intervertebral disc prolapse was war-caused pursuant to section 9 of the Act. DECISION The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 19 March 1998 as affirmed by the Veterans' Review Board on 4 April 2000 and decides that the Applicant's cervical spondylosis with intervertebral disc lesion was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

Ratio Decidendi

Legal Principle Established

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