14 September 2012

Administrative Appeals Tribunal issues decision in Green and Repatriation Commission

Today the Australian Administrative Appeals Tribunal issued a decision in Green and Repatriation Commission [2012] AATA 619 (14 September 2012) affirming the original decision.  The issues in the case were whether the condition affecting an Army veteran's eye, including chorioretinal scarring and visual field defects, were defence-caused.

Green for the most part involves section 70 of the Veterans’ Entitlements Act 1986 and specifically the "but for" test outlined in section 70(5)(c) in which an injury may be deemed to be a defence-caused injury or a disease may be deemed to be a defence-caused disease if the member’s incapacity “was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service..., or but for changes in the member’s environment consequent upon his or her having rendered any such service” within the terms of section 70(7).

The Tribunal, Member Simon Webb, found that Green did not present evidence to establish that section 70(5)(c) is satisfied in the case relying on two Federal Court cases of Holthouse v Repatriation Commission [1982] FCA 113; Repatriation Commission v Law (1980) 31 ALR 140 at 151.

Concerning the "arise out of, or attributable to" prong of section 70(5)(a) the Tribunal found it was not satisfied.  The Tribunal rejected reliance upon Langley v Repatriation Commission [1993] FCA 299 and Johnston v Commonwealth [1982] HCA 54 holding that the binding principles set out in those two cases did not assist in the instant case. Further that Green is distinguished from that of Re Repatriation Commission and Wicking [1987] AATA 358, "in which Mr Wicking was required to live on base and slipped and fell in a shower, injuring his left shoulder and arm. In that case the mechanism of injury and the connexion with Mr Wicking’s defence service were very clear, even though Mr Wicking was off-duty. In this case they are not."

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