Somerset v Repatriation Commission

Case [2005] FCA 1399

FEDERAL COURT OF AUSTRALIA

Somerset v Repatriation Commission [2005] FCA 1399

VETERANS AFFAIRS – War-caused injury or disease – appeal from decision of  Administrative Appeals Tribunal – whether veteran suffering from a condition of Meniere’s disease – whether veteran became incapacitated from a war-caused disease – application of a Statement of Principles relating to Meniere’s disease developed by the Repatriation Medical Authority – whether error of law on the part of the Tribunal in the application of the tests to determine incapacity from a war-caused disease – whether conclusion that the Tribunal supported by any evidence. 

Administrative Appeals Tribunal Act 1975, s.44(1)
Veterans’ Entitlements Act 1986, s.5C, s.5D(1), s.5D(2), s.7, s.9(1), s.13(1), s.120(1), s.120(3), s.120(4), s.120(6), s.120B generally, s.196B generally and, in particular, s.196B(3) and s.196B(14)

Repatriation Commission v. Deledio (1998) 83 FCR 82 at 95-96
Deledio v Repatriation Commission (1997) 25 AAR 396 at 411-412
Repatriation Commission v Wedekind [2000] FCA 649
Brew v Repatriation Commission (1999) FCA 1246)
Waterford v Commonwealth (1987) 71 ALR 673 at 689

Guidelines for the conduct of trials and pre-trial steps.

EDWARD P SOMERSET v REPATRIATION COMMISSION

QUD235 OF 2004

GREENWOOD J
30 SEPTEMBER 2005

BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD235 OF 2004

BETWEEN:

EDWARD P SOMERSET
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GREENWOOD J

DATE OF ORDER:

30 SEPTEMBER 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The notice of motion filed by the applicant appellant on 14 September 2005 is dismissed. 

3.There be no order as to costs. 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD235 OF 2004

BETWEEN:

EDWARD P SOMERSET
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

GREENWOOD J

DATE:

30 SEPTEMBER 2005

PLACE:

BRISBANE

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant, Edward Plantagenet Somerset, appeals pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal (Veterans’ Appeals Division) (“the AAT”) delivered on 15 October 2004 affirming a decision of the Repatriation Commission dated 20 August 1999 (subsequently affirmed by the Veterans’ Review Board on 15 February 2001) refusing the applicant’s claim for a disability pension made on the ground that Mr Somerset, a veteran, had become incapacitated by reason of a war-caused disease.

  2. The applicant contends that he suffers from a series of complaints including roaring, ringing and what he describes as “unbelievable pain” in the ears, dizziness, lack of balance, nausea and other physical disabilities described at paragraphs [11] and [16] of the Reasons for Decision of the AAT and further discussed in the AAT’s evaluation of the medical evidence in relation to the claim. 

  3. In the applicant’s statement of 14 November 1999, Mr Somerset claimed he was suffering (and today continues to suffer) from effects of a disease described as Meniere’s disease which is “a disease of the internal ear characterised by deafness, vertigo and tinnitus frequently accompanied by nausea, vomiting and…

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AGLC
Somerset v Repatriation Commission [2005] FCA 1399
Case
[2005] FCA 1399
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was presented with an appeal from the Administrative Appeals Tribunal (AAT) decision concerning the eligibility of Mr Somerset for a war service pension under the Veterans' Entitlements Act 1986 (Cth). The AAT had ruled against Mr Somerset's claim for an incapacity pension, finding that he did not suffer from Meniere's disease during his war service, and thus did not meet the criteria set out in the Statement of Principles. This appeal sought to challenge the AAT's findings and the interpretation of the relevant legislative provisions, particularly those concerning the causation and onset of Meniere's disease in relation to his wartime experiences.

The court needed to decide whether the AAT had correctly applied the legal tests and the Statement of Principles in its review of the Repatriation Commission's decision. The primary legal issues involved the interpretation of the Veterans' Entitlements Act and the Statement of Principles, which establish the criteria for determining whether a disease contracted by a veteran is attributable to their war service. The court had to consider whether the AAT erred in its application of the statutory test for reasonable satisfaction and whether the medical evidence sufficiently supported the AAT's conclusions about the onset and causation of Meniere's disease.

The court held that the AAT had not erred in its application of the law or the Statement of Principles. It found that the AAT correctly interpreted the relevant provisions of the Veterans' Entitlements Act and applied the appropriate legal tests. The evidence before the AAT did not support Mr Somerset's claim that he suffered from Meniere's disease during his war service, and the AAT's conclusion that the disease was not attributable to his service was consistent with the statutory requirements and the medical evidence. The court also noted that the Statement of Principles played a crucial role in establishing the medical-scientific standard for determining the connection between the disease and the veteran's service, and the AAT's decision aligned with this standard.

In conclusion, the Federal Court dismissed the appeal and affirmed the AAT's decision. The court held that the AAT's findings were supported by the evidence and the correct application of the law. The appeal was dismissed, and the notice of motion filed by Mr Somerset was also dismissed. There was no order as to costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The notice of motion filed by the applicant appellant on 14 September 2005 is dismissed.

3. There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GREENWOOD J
I have formulated these two questions as, in a sense, an extrapolation of the ground of appeal formulated by the applicant and his wife because, as I explained to Mrs Somerset, the question before the Federal Court of Australia, in its original jurisdiction, in an “appeal” of this kind from the AAT is whether there is a question of law to be determined in the sense that the AAT has made an error of law rather than whether legitimately different views might be taken, based on the evidence before the AAT, as to the factual matters to be decided by the AAT. There may be an error of law if the AAT has applied the wrong test, failed to apply the Statement of Principles or has come to a decision based on evidence which was incapable of supporting the conclusion reached. THE DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL The Tribunal delivered a decision on 15 October 2004 in its review of the decision of the Repatriation Commission on 20 August 1999. The AAT found that the applicant was born on 15 December 1924 and served in the Royal Australia Air Force in Australia from 21 December 1942 to 11 January 1944 and that this period of service during World War II constituted eligible war service for the purposes of the V E Act. The AAT accepted that the applicant was suffering from disabilities described as bilateral sensori-neural hearing loss with tinnitus, chronic sinusitis, asthma and acquired cataract in the left eye. The AAT accepted that Mr Somerset suffered a noise trauma during his service in mid 1943 (aged 18) at Shepparton when a half stick of gelignite used for the purpose of simulating enemy attack, exploded near him. The AAT found that the weight of medical evidence before the Tribunal supported the view that a noise trauma such as that experienced by the applicant during training in Shepparton is not a recognised factor giving rise to a causal connection between such a trauma and the development of Meniere’s disease. The AAT found that even if the applicant did suffer from Meniere’s disease during his service it was not caused by the gelignite explosion (see paragraph [35] of the Tribunal’s Reasons). The AAT then considered whether Mr Somerset in any event, did suffer from Meniere’s disease during his period of service and found that there is no medical evidence to support Mr Somerset’s contention that he suffered from the disease during his service. The AAT concluded that the doctors who have formed the view that the applicant now suffers from Meniere’s disease all put the onset of such a disease well into the post-war period. Mrs Somerset gave evidence before the Tribunal that her experience of the first attack suffered by Mr Somerset of symptoms which might have given rise to a diagnosis of Meniere’s disease, occurred in early 1947. The AAT concluded that the applicant did not suffer from Meniere’s disease during his relevant war service and so found. The AAT concluded that the applicant was unable to satisfy element or factor 4 of the Statement of Principles being Instrument No. 78 of 2001 formulated by the Repatriation Medical Authority in relation to Meniere’s disease (see paragraphs [37] and [38] of the Tribunal’s Reasons).

Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

The role of the Statement of Principles document is to set out or prescribe what is, in effect, a medical-scientific standard for the relevant disease and to statutorily establish, by force of the V E Act itself, a statement or declaration of those factors that are proved or known as medical or scientific facts about the particular disease. The role of the Repatriation Medical Authority is to determine the content of the Statement of Principles so as to identify the minimum factors which can connect the particular kind of disease with the circumstances of the veteran’s particular service. There may be a number of factors that must exist before it can be said that the disease is, on balance, connected with the circumstances of the veteran’s service and, if so, the Authority must set out which of those factors must be related to the veteran’s circumstances of service before a conclusion can be made of a connection between the disease and the veteran’s particular service. CONSIDERATION OF THE ISSUES The Statement of Principles is designed to set out known or proved medical-scientific facts against which the veteran’s claim must be measured. These principles derive not only from a construction of the provisions of the V E Act but from previous consideration of the relevant provisions by the Court. See, for example, Repatriation Commission v. Deledio (1998) 83 FCR 82 at 95-96; Deledio v Repatriation Commission (1997) 25 AAR 396 at 411-412 and Repatriation Commission v Wedekind [2000] FCA 649. Section 9 of the V E Act sets out the circumstances when an injury suffered or a disease contracted by a veteran shall be taken to be a war-caused injury or a war-caused disease. Section 9(1)(b) provides, like s.196B(14)(b), that a disease contracted by a veteran shall be taken to be a war-caused disease if “the disease arose out of, or was attributable to, any eligible war service rendered by the veteran”. Section 9(1)(e) brings about the same result if the disease contracted by the veteran was “suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service” and in the opinion of the Repatriation Commission, the disease was “contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, after the veteran contracted the disease”. No specific discussion took place before the Veterans’ Review Board or the AAT as appears from the papers in relation to s.9 of the V E Act. Rather, the question was whether in deciding the matters relating to the claim for an incapacity pension pursuant to s.13, the test of reasonable satisfaction (in respect of non-operational service) required by s.120(4) was met having regard to the evidence and the statutory effect of the Statement of Principles determined by the Authority under s.196B(3). The elaboration in s.196B(14), however, essentially replicates some of the causal relationships found in s.9(1) of the V E Act.