Stoddart and Repatriation Commission - [2002] AATA 791

DECISION AND REASONS FOR DECISION [2002] AATA 791

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/450

VETERANS' APPEALS DIVISION       )
           Re      LESLIE JOHN STODDART
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date11 September 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – post traumatic stress disorder – alcoholic liver disease – whether applicant's conditions are war-caused within meaning of section 9 of Act – whether applicant experienced severe stressors during his operational service – reasonable hypothesis
Veterans' Entitlements Act 1986 sections 9, 120, 120A
McKenna v Repatriation Commission [1999] FCA 323
Repatriation Commission v Gorton [2001] FCA 1194
Statement of Principles No 5 of 1994
Statement of Principles No 15 of 1994
Statement of Principles No 76 of 1998
Statement of Principles No 3 of 1999
Statement of Principles No 54 of 1999

REASONS FOR DECISION

11 September 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) dated 5 July 1999, which refused the applicant's claim for Disability Pension for the conditions of post traumatic stress disorder (PTSD) and alcoholic liver damage. The Veterans' Review Board (VRB) affirmed the decision on 12 September 2000.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr White appeared for the applicant, who gave oral evidence, and called Dr B Rowe, Psychiatrist. Mr Doube represented the Commission.
The applicant, who is aged 63, served with the Royal Australian Navy (the Navy) from 29 August 1955 (when he was 17 years of age) until his 24th birthday on 28 April 1962. His eligible operational service for the Far East Strategic Reserve on HMAS Sydney (the Sydney), is from 21 September 1956 to 13 October 1956; and on HMAS Melbourne (the Melbourne) from 5 April 1957 to 7 May 1957, from 7 June 1957 to 28 June 1957, from 30 April 1958 to 13 May 1958, and from 18 March 1959 to 28 April 1959, a total period of 134 days. In this matter, the applicant asserts that his conditions relate to his operational service, and the appropriate standard of proof is that of reasonable hypothesis, in accordance with section 120(1) of the Veterans' Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
"120 Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied,…

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 Stoddart and Repatriation Commission

Details

AGLC: Stoddart and Repatriation Commission [2002] AATA 791
Case: [2002] AATA 791
Decision Date: 11 September 2002

CaseChat Overview and Summary

The matter before the court involved a claim by an ex-serviceman for a Disability Pension under the Veterans' Entitlements Act 1986. The applicant, Mr Stoddart, sought to have his post-traumatic stress disorder and alcoholic liver disease recognised as war-caused conditions for the purposes of receiving a pension. The Repatriation Commission was the respondent, defending the applicant's claims. The Federal Court of Australia was the tribunal that adjudicated on the matter.

The central legal issues before the court were whether the applicant's conditions were indeed war-caused within the meaning of section 9 of the Act and whether Mr Stoddart had experienced severe stressors during his operational service that could reasonably be considered the cause of his post-traumatic stress disorder. The court needed to determine whether the applicant's conditions met the threshold of being attributable to his service, as required by the legislation and relevant principles.

In delivering the judgment, the court examined the evidence and testimonies presented by both parties. The court found that the applicant's service did expose him to events that could be considered severe stressors, which were sufficient to establish a reasonable hypothesis that his post-traumatic stress disorder was caused by those events. However, the court determined that the alcoholic liver disease was not connected to the applicant's service and thus was not war-caused. The court held that while the applicant was entitled to a pension for his war-caused post-traumatic stress disorder, he was not entitled to one for his alcoholic liver disease.

The court ordered that the Repatriation Commission pay Mr Stoddart a Disability Pension for his war-caused post-traumatic stress disorder but denied his claim for a pension related to his alcoholic liver disease. The decision was based on the specific findings regarding the causation of each condition and the applicable statutory provisions.

Orders