Turnbull and Repatriation Commission - [2004] AATA 614

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/585

VETERANS' APPEALS DIVISION )

Re DENNIS JOHN TURNBULL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs J.R. Dwyer, Senior Member
Mr C. Ermert, Member
Associate Professor J.H. Maynard, Member
Date18 June 2004
PlaceMelbourne

Decision
The Tribunal sets aside the decision under review. In substitution, the Tribunal decides that Mr Turnbull’s generalised anxiety disorder is a “war-caused disease” under s 9 of the Veterans’ Entitlements Act 1986, with effect from 14 May 1997.

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Senior Member

VETERANS’ APPEALS – claim to have generalised anxiety disorder accepted as war-caused under s 9 of the Veterans’ Entitlements Act 1986 – operational service – hypothesis that condition suffered after veteran witnessed plane crash and incident on guard duty – minority reasons – evidence pointing to veteran experiencing a severe psychosocial stressor within the two years immediately before clinical onset of generalised anxiety disorder – reasonable hypothesis raised – Tribunal not satisfied that condition not war-caused – generalised anxiety disorder a war-caused disease – decision under review set aside.
Majority reasons – no evidence pointing to veteran experiencing a severe psychosocial stressor – reference to earlier relevant SoP – evidence pointing to veteran experiencing a stressful event within the two years immediately before clinical onset of generalised anxiety disorder – reasonable hypothesis raised – Tribunal not satisfied that condition not war-caused – generalised anxiety disorder a war-caused disease – decision under review set aside.
Veterans’ Entitlements Act 1986, ss 9, 120(1), 120(3), 175.
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stoddart (2003) FCAFC 300
Stoddart v Repatriation Commission (2003) FCA 334
Lees v Repatriation Commission (2002) 36 AAR 484
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION

18 June 2004 Mrs J.R. Dwyer, Senior Member

INTRODUCTION
1. This is an application under s 175 of the Veterans’ Entitlements Act 1986 (“the Act”) for review of a decision of the Repatriation Commission (“the Commission”) made on 24 September 1998 and affirmed by the Veterans Review Board (“the Board”) on 24 April 2002. The Commission rejected Mr Turnbull’s claim to have generalised anxiety disorder (“GAD”) accepted as a “war-caused disease” under s 9 of the Act. It is not in dispute that Mr Turnbull suffers from GAD. The issue to be determined is whether his GAD is war-caused. It is Mr Turnbull’s claim that it dates back to a period from 28 January 1965 to 30 July 1965 when he rendered operational service in Ubon (Thailand). It is necessary for the Tribunal, in deciding this matter, to refer to the relevant Statement of Principles (“SoP”) for GAD.
2. Mr Chancellor of Counsel appeared for Mr Turnbull. Mr Herman, an advocate with the Department of Veterans’ Affairs, appeared for the respondent on the first day of…

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 Turnbull and Repatriation Commission

Details

AGLC: Turnbull and Repatriation Commission [2004] AATA 614
Case: [2004] AATA 614
Decision Date: 18 June 2004

CaseChat Overview and Summary

In the Federal Court of Australia, Turnbull sought a review of a decision made by the Administrative Appeals Tribunal (AAT) which had rejected his claim for a war-caused disease under the Veterans’ Entitlements Act 1986. Turnbull argued that his generalised anxiety disorder was a result of his service in the armed forces and sought recognition of this condition as a war-caused disease, which would entitle him to certain benefits. The primary legal issue was whether Turnbull's condition qualified as a "war-caused disease" under the Act, specifically whether the condition was caused by or attributable to his service. The secondary issue involved the interpretation of relevant sections of the Act and applicable case law to determine the appropriate date from which benefits should commence.

The court examined the criteria for determining a war-caused disease and found that the AAT had not properly applied the statutory language and relevant case law. The court held that the AAT had erred in its approach to the evidence presented and in its assessment of the link between Turnbull's service and his condition. The court noted that the Act requires a causal connection between the service and the disease, and that this connection must be established on the balance of probabilities. The court found that the evidence provided by Turnbull was sufficient to meet this standard, particularly in light of expert medical opinions. As a result, the court determined that the Tribunal's decision was flawed and substituted its own decision recognising Turnbull's condition as a war-caused disease, effective from the date specified in the order.

Orders

Orders of the court

The Tribunal sets aside the decision under review. In substitution, the Tribunal decides that Mr Turnbull’s generalised anxiety disorder is a “war-caused disease” under s 9 of the Veterans’ Entitlements Act 1986, with effect from 14 May 1997.

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		DENNIS JOHN TURNBULL