Skurrie and Repatriation Commission - [2008] AATA 1093

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1093
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0880

VETERANS' APPEALS DIVISION )

Re TREVOR SKURRIE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Brigadier C. Ermert, Member

Dr K. Breen, Member

Date8 December 2008
PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Skurrie’s condition of alcohol dependence is war-caused. The Tribunal remits the matter to the respondent for the determination of the revised rate of pension to be paid as a result of this decision, taking into account the further decision of the Tribunal that Mr Skurrie is not eligible for the payment of pension at the special rate.
(sgd) Conrad Ermert
Member

VETERANS’ AFFAIRS ‑ operational service ‑ diagnosed conditions – alcohol dependence – PTSD ‑ four stages of Deledio reasoning ‑ hypothesis connecting conditions with operational service ‑ Statements of Principles ‑ whether hypothesis fits Statement of Principles – alcohol dependence found to be war-caused ‑ re-assessment of level of incapacity – incapacity of 70 per cent ‑ whether eligible for special rate – decision set aside – pension to be paid at new rate – not eligible for payment at special rate.
Veterans’ Entitlements Act 1986
Re Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

8 December 2008
Brigadier C. Ermert, Member

Dr K. Breen, Member

INTRODUCTION
1. Mr Trevor Skurrie, the applicant in this case, served in the Australian Army from 1 May 1968 to 1 May 1970 and had operational service in South Vietnam from 21 May 1969 to 18 March 1970. While in South Vietnam Mr Skurrie was posted to a section of 1 Armoured Regiment Light Aid Detachment (LAD), a small technical unit dedicated to providing battlefield repair and recovery assistance to a squadron of 1 Armoured Regiment. Mr Skurrie was employed as the driver of an Armoured Recovery Vehicle (ARV), a vehicle similar to a Centurion tank designed to pull or tow, that is recover, disabled or damaged battle tanks off the battlefield. During Mr Skurrie’s time in South Vietnam the LAD supported the operations of B Squadron and then later A Squadron of 1 Armoured Regiment.
2. While in South Vietnam Mr Skurrie had four particular experiences which he reported as stressful. The first (Stressor 1) occurred on the morning after a night ambush operation, when he was told that a loud explosion he heard was caused by Australian infantry soldiers using Claymore mines to blow up enemy bodies. The second reported experience (Stressor 2) was the smell of dead bodies and the sight of a dead enemy soldier lying beside a track. The third experience (Stressor 3) was when the tank squadron came under attack from machine gun fire and one tank became stuck on…

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 Skurrie and Repatriation Commission

Details

AGLC: Skurrie and Repatriation Commission [2008] AATA 1093
Case: [2008] AATA 1093
Decision Date: 8 December 2008

CaseChat Overview and Summary

The case of Skurrie and Repatriation Commission came before the Administrative Appeals Tribunal, where the appellant, Mr Skurrie, sought a review of a decision by the Repatriation Commission regarding his pension entitlements. Mr Skurrie claimed that his alcohol dependence was caused by his service in the Australian Defence Force and thus should be recognised as war-caused, entitling him to a higher rate of pension. The Repatriation Commission had previously denied his claim, prompting this appeal.

The central legal issues in the case revolved around the interpretation and application of the relevant legislative provisions concerning war-caused conditions and the criteria for determining whether a particular condition is attributable to military service. Specifically, the Tribunal needed to assess whether Mr Skurrie’s alcohol dependence met the statutory definition of a war-caused condition and if it was reasonably attributable to his service.

In its decision, the Tribunal meticulously reviewed the evidence presented by both parties and considered the applicable legislative framework. The Tribunal found that the evidence, including Mr Skurrie’s service records and medical assessments, sufficiently demonstrated a causal link between his military service and his alcohol dependence. The Tribunal concluded that the Repatriation Commission had erred in its original assessment and that Mr Skurrie’s condition should indeed be classified as war-caused. Consequently, the Tribunal set aside the Commission's decision and substituted its own, recognising Mr Skurrie's condition as war-caused and directing the Commission to reassess his pension entitlement accordingly. The Tribunal also determined that Mr Skurrie was not eligible for the special rate of pension.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes the decision that Mr Skurrie’s condition of alcohol dependence is war-caused. The Tribunal remits the matter to the respondent for the determination of the revised rate of pension to be paid as a result of this decision, taking into account the further decision of the Tribunal that Mr Skurrie is not eligible for the payment of pension at the special rate.

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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