Scott and Repatriation Commission - [2010] AATA 1056

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3056

VETERANS' APPEALS DIVISION )

Re Sharon Scott

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton
Date23 December 2010
PlaceSydney

Decision
The decision under review is affirmed.

....................[sgd]....................
Senior Member

CATCHWORDS
VETERANS' ENTITLEMENTS - defence service - depressive disorder – Statements of Principle (SoP) - causation – whether condition connected with defence service.
Veterans Entitlements Act 1986 (Cth) — ss 70, 120, 196B
Lees v Repatriation Commission (2002) 74 ALD 68
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION

23 December 2010 Senior Member A K Britton

1.      Ms Sharon Scott has made a claim for a pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act) in respect of a “depressive disorder”. That claim has been refused by the Repatriation Commission, the respondent in these proceedings, and on review by the Veterans Review Board. Ms Scott now seeks review by the Administrative Appeals Tribunal.
2.      Ms Scott contends that the Commonwealth is liable for her condition of depression because it is “defence-caused”, in that was the result of three sexual assaults that occurred during a period of “eligible defence service”.
3.      The parties agree that Ms Scott suffers from a “dysthymic disorder” as that term is defined by the Statement of Principles for “Depressive Disorder” (Instrument No. 28 of 2008). The key issue in dispute is whether the disorder was “attributable to” Ms Scott’s service with the Royal Australian Navy.
Statutory framework
4.      Ms Scott’s service with the Royal Australian Navy between 1976 and April 1994 constitutes “defence service” within the meaning of s 68 of the Act. The Commonwealth will be liable to pay a pension by way of compensation to Ms Scott if she is incapacitated from a “defence-caused injury/disease”: s 70(1). A disease shall be taken to be “defence-caused” if, in the decision-maker’s opinion, it was "attributable to any defence service" performed by the veteran: s 70(5)(a). The decision-maker is required to decide the matter to its reasonable satisfaction: s 120(4).
5.      Section 120B(3) provides that the decision-maker is to be reasonably satisfied that a disease suffered by Ms Scott was defence-caused only if:
(a)      the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)      there is in force:
(i)        a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)       a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

6. The Statement of Principles determined by the Repatriation Medical Authority under s 196B(3) on which Ms Scott relies, is “Depressive Disorder — Statement of Principles, Instrument No. 28 of 2008”. It provides that at least one of the factors enumerated in clause 6 of that Statement must exist before…

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 Scott and Repatriation Commission

Details

AGLC: Scott and Repatriation Commission [2010] AATA 1056
Case: [2010] AATA 1056
Decision Date: 23 December 2010

CaseChat Overview and Summary

The matter between Scott and the Repatriation Commission involved a claim for compensation related to a depressive disorder allegedly connected to the applicant’s service in the Defence Force. The case was heard and determined by the Federal Court of Australia. The primary issue before the court was whether the depressive disorder experienced by Scott was connected to his service in the Defence Force, thus qualifying for compensation under the relevant legislative provisions. The court had to assess whether the disorder met the criteria set out in the Statements of Principle, specifically whether the condition was connected with the service as required by the legislation.

The court engaged in a detailed analysis of the evidence presented, including medical reports, the applicant's statements, and expert opinions. The key legal question revolved around establishing a causal link between the depressive disorder and Scott's service. The court meticulously reviewed the evidence to determine whether the condition arose out of or was aggravated by the service, in line with the statutory criteria. After thorough consideration, the court found that the evidence did not sufficiently establish the necessary connection between Scott's service and his depressive disorder, thereby affirming the decision of the Commission not to grant compensation.

The court's decision was grounded in the specific requirements of the legislative framework governing veterans' entitlements. The analysis underscored the necessity for a clear causal link between the service and the claimed condition. The findings highlighted the stringent criteria under the Statements of Principle and the burden of proof on the applicant to demonstrate the requisite connection. The court's affirmation of the Commission's decision reflected a cautious approach to interpreting the evidence in light of the statutory provisions.

Orders

Orders of the court

The decision under review 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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