Thorpe and Repatriation Commission - [2003] AATA 667

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 667
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1392

VETERANS' APPEALS DIVISION )

Re PATRICK KENNETH RALPH THORPE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal P. J. Lindsay, Senior Member, Dr M.E.C.Thorpe, Member
Date 15 July 2003
PlaceSydney

Decision
Decision under review set aside. In substitution the Tribunal decides that Mr Thorpe’s alcohol abuse and alcoholic liver damage were war-caused with effect from 20 April 1998. The matter is remitted to the Repatriation Commission for assessment.

(sgd) P. J. Lindsay
Senior Member

CATCHWORDS
Veterans Affairs – entitlement – whether post-traumatic stress disorder with alcohol abuse and alcoholic liver damage war-caused
Veterans’ Entitlements Act 1986
Repatriation Medical Authority Statement of Principles, Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
Repatriation Commission v Deledio (1998) 49 ALD 193
Benjamin v Repatriation Commission (2001) 34 AAR 270
Re Budworth and Repatriation Commission [2000] AATA 127
East v Repatriation Commission (1987) 16 FCR 517
Stoddart v Repatriation Commission [2003] FCA 334
REASONS FOR DECISION

P. J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member

1.      This is an application under the Veterans’ Entitlements Act 1986 (the Act) by Patrick Thorpe (the applicant).   Mr Thorpe seeks the review of a decision made on 17 April 1999 by the Repatriation Commission (the Commission) that refused his claim for acceptance of the conditions of post traumatic stress disorder with alcohol abuse, and alcoholic liver damage, as war-caused under the Act. The Veterans’ Review Board (the Board) affirmed the decision on 17 July 2001.
2. Mr N. Dawson, of counsel, appeared for Mr Thorpe at the Tribunal’s hearing. The Commission was represented by Ms P. Hook from the Department of Veterans’ Affairs (the Department). Mr Thorpe and Dr Dinnen, consultant psychiatrist, gave evidence at the hearing. The Tribunal had before it the documents (T documents) as lodged under s.37 of the Administrative Appeals Tribunal Act 1975 as well as supplementary documents (ST documents), and also the exhibits tendered during the hearing.
Background
3.      Mr Thorpe was born on 9 September 1948 and served in the Royal Australian Navy from 6 January 1965 to 4 May 1987 (T3-9). He had the following periods of operational service in Vietnam: from 24 April 1966 to 18 May 1966 and from 25 May 1966 to 11 June 1966 (T3 p9-10). During these periods he served in HMAS Sydney as an ordinary seaman with electrical and mechanical duties. Mr Thorpe also had a period of eligible defence service from 7 December 1972 to 24 March 1987.
4.      In 1994 Dr Collett, respiratory physician, diagnosed sleep apnoea and chronic liver disease as a result of Mr Thorpe’s heavy alcohol intake (T4-33).
5.      In 1995 Mr Thorpe lodged a claim with the Department for a disability pension citing post traumatic stress disorder as his service-related illness (ST8-107). His claim stated:
I served on HMAS Sydney during the Vietnam War during my two tours we carried troops. In Vietnam waters grenades were thrown over…

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 Thorpe and Repatriation Commission

Details

AGLC: Thorpe and Repatriation Commission [2003] AATA 667
Case: [2003] AATA 667
Decision Date: 15 July 2003

CaseChat Overview and Summary

The case of Thorpe and Repatriation Commission involved Mr Thorpe, a veteran, contesting the Commission's decision regarding his entitlement to benefits for post-traumatic stress disorder (PTSD) with alcohol abuse and alcoholic liver damage, arguing these conditions were war-caused. The matter was heard by the Administrative Appeals Tribunal (AAT).

The central legal issues were whether Mr Thorpe's alcohol abuse and liver damage were attributable to his war service under the Veterans’ Entitlements Act 1986 and if the Repatriation Medical Authority's Statement of Principles correctly applied to his case. The Tribunal needed to consider relevant case law and statutory provisions to determine the war-causation of these conditions.

In its reasoning, the Tribunal examined the evidence and case law, particularly the principles established in Repatriation Commission v Deledio and Benjamin v Repatriation Commission. It noted the medical evidence linking Mr Thorpe’s alcohol abuse and liver damage to his PTSD, which was accepted as war-caused. The Tribunal found that the Commission's decision did not adequately address the connection between the veteran's service and his current health conditions. It set aside the Commission's decision and substituted its own, affirming that Mr Thorpe's conditions were indeed war-caused.

The final orders were that the decision under review was set aside, and the matter was remitted to the Repatriation Commission for reassessment of Mr Thorpe's entitlements, with the determination that his alcohol abuse and liver damage were war-caused from 20 April 1998.

Orders

Orders of the court

Decision under review set aside. In substitution the Tribunal decides that Mr Thorpe’s alcohol abuse and alcoholic liver damage were war-caused with effect from 20 April 1998. The matter is remitted to the Repatriation Commission for assessment.

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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VETERANS' APPEALS DIVISION		)
Re		PATRICK KENNETH RALPH THORPE