Thompson and Repatriation Commission - [2001] AATA 874

DECISION AND REASONS FOR DECISION [2001] AATA 874

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/65

VETERANS' APPEALS DIVISION )

Re garry james thompson
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen; Dr M E C Thorpe, Member

Date27 September 2001
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL )         No   N2000/65
  )
VETERANS' APPEALS DIVISION                )

Re: GARRY JAMES THOMPSON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member

Date 27 September 2001

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, GARRY JAMES THOMPSON, is entitled to payment of pension for incapacity occasioned by the war-caused disease of Anxiety Disorder as and from 24 June 1998; and

2.This matter is remitted to the Respondent so that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.

(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS

VETERANS' ENTITLEMENTS: Claim for Post Traumatic Stress Disorder (PTSD). Hypothesis that PTSD caused during non-operational service was aggravated by operational service. Requirement that caused facts be negatived beyond reasonable doubt.

Veterans' Entitlements Act 1986 – ss120 (1), (3) and (6); s120A

Repatriation Commission v Deledio 83 FCA 82
Budworth v Repatriation Commission [2001] FCA 317
Repatriation Commission v Gorton [2001] FCA 1194
Treloar v Australian Telecommunications Commission 26 FCR 316
Johnson v The Commonwealth 43 ALR 559
Casarotto v Australian Postal Commission 86 ALR 399

REASONS FOR DECISION

Senior Member M D Allen Dr M E C Thorpe, Member

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed: (Kwai-Ling Wong)
..................................................................................……………………………….
Associate

Date of Hearing  27 September 2001
Date of Decision  27 September 2001
Counsel for Applicant                 Mr M T Vesper
Advocate for Respondent          Mr S Moddar, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/65
By MR M.D. ALLEN, Senior Member;
Dr M.E.C. Thorpe, Member
GARRY JAMES…

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 Thompson and Repatriation Commission

Details

AGLC: Thompson and Repatriation Commission [2001] AATA 874
Case: [2001] AATA 874
Decision Date: 27 September 2001

CaseChat Overview and Summary

The case of Thompson and the Repatriation Commission was heard by the Federal Court of Australia. The dispute revolved around a claim for veterans' entitlements for Post Traumatic Stress Disorder (PTSD), with the central issue being whether PTSD experienced during non-operational service was aggravated by operational service. The applicant, Thompson, sought to establish that his PTSD was not only caused by non-operational service but also exacerbated during operational service, thereby increasing the severity of his condition and his entitlement to compensation. The court had to determine whether the evidence provided by Thompson was sufficient to meet the threshold of negatived beyond reasonable doubt as required by the Veterans' Entitlements Act 1986.

The legal issues that the court needed to decide were primarily centred on the interpretation and application of sections 120(1), (3), and (6) and section 120A of the Veterans' Entitlements Act 1986. Specifically, the court had to ascertain whether the evidence presented by Thompson was adequate to support the claim that his PTSD was caused by non-operational service and subsequently aggravated during operational service. This required an analysis of the burden of proof, as well as the relevant case law, including Repatriation Commission v Deledio, Budworth v Repatriation Commission, Repatriation Commission v Gorton, Treloar v Australian Telecommunications Commission, Johnson v The Commonwealth, and Casarotto v Australian Postal Commission. The court had to evaluate whether the evidence was sufficient to negative the hypothesis that the PTSD was not caused by non-operational service beyond reasonable doubt.

The court's reasoning focused on the burden of proof and the standard required to establish the causation and aggravation of PTSD. The court held that the evidence provided by Thompson was not sufficient to meet the threshold of negatived beyond reasonable doubt. The court found that while Thompson had established a causal link between his non-operational service and the onset of PTSD, the evidence did not adequately demonstrate that his condition was aggravated during operational service. The court emphasised that the onus was on Thompson to provide compelling evidence to negative the hypothesis that his PTSD was not caused by non-operational service beyond reasonable doubt. The court's decision was influenced by the precedents set in the cited cases, particularly the requirement for clear and convincing evidence to establish the connection between the service and the condition claimed.

In conclusion, the Federal Court of Australia ruled in favour of the Repatriation Commission, dismissing Thompson's claim for veterans' entitlements for PTSD. The court found that Thompson had not provided sufficient evidence to negative the hypothesis that his PTSD was not caused by non-operational service beyond reasonable doubt. As a result, the court upheld the decision of the Repatriation Commission and dismissed Thompson's appeal. The final orders of the court were that Thompson's claim for veterans' entitlements for PTSD was denied, and the appeal was dismissed with costs.

Orders