Todd and Repatriation Commission - [2008] AATA 264

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 264
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600367

VETERANS’ APPEALS DIVISION )

Re Gordon Todd

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Senior Member Bernard J McCabe

Dr G Maynard, Member

Date2 April 2008
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
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SENIOR MEMBER

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – whether psychiatric condition defence-caused – whether applicant meets statement of principles – decision affirmed
Repatriation Commission v Milenz [2006] FCA 1436; (2007) 93 ALD 107, applied
REASONS FOR DECISION

2 April 2008 Senior Member Bernard J McCabe

Dr G Maynard, Member
1.      Gordon Todd was diagnosed with a lung condition in 2002. The Repatriation Commission accepts the lung condition is related to the applicant’s military service. He has also been diagnosed with a psychiatric condition. These proceedings arise out of Mr Todd’s claim that his psychiatric condition is defence-caused because it was either brought on or worsened by the stress associated with his defence-caused lung condition.
2.      We are not satisfied Mr Todd’s psychiatric symptoms are attributable to the conditions of his service. It follows his application must fail. We explain our reasons below.
The background facts
3.      Mr Todd served in the Navy between 1966 and 1975. He rendered operational service in Vietnam for 12 days in 1969 and five weeks in 1972. His service in the period from 7 December 1972 until discharge was defence service.
4.      The applicant was diagnosed in 2002 as suffering from a range of respiratory conditions, including pleural plaques, asbestosis and emphysema. Pleural plaques and asbestosis were accepted as being related to his service as a result of the applicant’s exposure to asbestosis aboard naval vessels. Emphysema was accepted on the basis of the applicant’s smoking habit.
5.      Mr Todd has been receiving psychiatric care for some time. His treating doctor diagnosed post traumatic stress disorder (“PTSD”) and alcohol abuse in 1999. Mr Todd’s subsequent application for a disability pension was rejected: see Todd and Repatriation Commission [2002] AATA 658; Todd and Repatriation Commission [2004] AATA 81. The Tribunal concluded the applicant had not established he was exposed to a “severe stressor” within the meaning of the relevant statements of principles.
6.      The applicant gave evidence at the hearing in these proceedings. He agreed he had been experiencing anxiety symptoms since the 1990s. Mrs Todd, the applicant’s wife, confirmed the applicant had been experiencing problems for many years. But the applicant says things became markedly worse in 2002, after he was diagnosed with pleural plaques. Mr Todd says he had heard reports of people with pleural plaques subsequently developing mesothelioma, which he understood to be fatal. He testified that he felt like he had a death sentence hanging over his head.
7.      Mr Todd says his mental state deteriorated when he was subsequently diagnosed with asbestosis and emphysema. He said he became withdrawn and angry. He said he experienced panic attacks, lost confidence, stopped fishing…

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 Todd and Repatriation Commission

Details

AGLC: Todd and Repatriation Commission [2008] AATA 264
Case: [2008] AATA 264
Decision Date: 2 April 2008

CaseChat Overview and Summary

In this case, the respondent, Todd, sought a review of a decision made by the Repatriation Commission, which found that his psychiatric condition was not attributable to his service in the defence force, and thus he did not meet the criteria set out in the relevant statement of principles for a psychiatric condition to be considered defence-caused. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the respondent’s psychiatric condition was caused by his service in the defence force and whether the Commission’s decision to deny the claim was correct. The court was required to determine whether the respondent’s condition met the criteria set out in the relevant statement of principles and whether the Commission’s decision was legally sound.

The court considered the relevant statutory provisions and case law, including Repatriation Commission v Milenz, and found that the Commission had correctly applied the relevant principles in making its decision. The court held that the respondent’s psychiatric condition did not meet the criteria set out in the relevant statement of principles, and that the Commission’s decision was not legally flawed. The court found that the Commission had properly considered all relevant evidence and had made its decision in accordance with the applicable law.

The court affirmed the decision of the Commission, holding that the respondent’s psychiatric condition was not attributable to his service in the defence force and that the Commission’s decision was correct. The court found that the Commission had properly considered all relevant evidence and had made its decision in accordance with the applicable law. The court held that the respondent’s psychiatric condition did not meet the criteria set out in the relevant statement of principles and that the Commission’s decision was not legally flawed. The court dismissed the respondent’s appeal and affirmed the decision of the Commission.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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2 April 2008	Senior Member Bernard J McCabe
Dr G Maynard, Member