The claims of alcohol abuse, alcohol dependence and depressive disorder
31 At [22]-[25], the Tribunal directed itself to the question of whether Mr Bawden suffers from any psychological condition other than PTSD, including alcohol abuse, alcohol dependence or depressive disorder. The Tribunal found that Mr Bawden suffers from alcohol dependence. It also found that Mr Bawden suffers from depressive disorder. In this respect, it acted correctly in not attempting as part of the process of diagnosis to deal with the question whether those conditions were related to Mr Bawden's operational service by having resulted from his experience of the sampan incident.
32 The Tribunal then turned to the question whether Mr Bawden's alcohol dependence was war-caused. At [26], the Tribunal recognised that it had to determine causation questions of the kind before it by applying the beyond reasonable doubt standard, in accordance with s 120(1) of the Veterans' Entitlements Act. At [27], the Tribunal quoted the four steps from the judgment of the Full Court in Deledio. It then proceeded to summarise the evidence about Mr Bawden's drinking history, including incidents up to December 1967 that either might have been, or were conceded to have been, occasions when Mr Bawden was drunk. At [31], the Tribunal referred to evidence that Mr Bawden began consuming methylated spirits and medicated wine after leaving HMAS Sydney in 1969. At [32], the Tribunal referred to what Mr Bawden had told two medical practitioners about his alcohol use. He told one that he commenced the use of alcohol on a very heavy basis during his military service, and the other that his heavy drinking commenced after the traumatic events on HMAS Sydney.
33 At [33], the Tribunal determined that the material pointed to a hypothesis connecting Mr Bawden's alcohol dependence with his operational service. The Tribunal did not specify what the hypothesis was.
34 The Tribunal then embarked on the second step, referring to the two relevant statements of principles. It set out provisions of those, including the definitions of category 1A stressor and category 1B stressor from no 1 of 2009, and equivalent provisions in no 76 of 1998. The Tribunal then referred to authority about the meaning of the term "clinical onset" at [38], before summarising the evidence of that clinical onset at [39]. At [40], the Tribunal said:
Despite the poor recollection of events by Mr Bawden, the Tribunal takes into account the evidence from Mr Bawden, Dr Been and Dr White and the events involving hospital admissions and civil convictions raised with Mr Bawden during cross-examination, including his concession that some of the events would not have occurred if he had been sober. His history of drinking shows a pattern that commenced during initial training on HMAS Leeuwin in 1964 and became more serious when he served on HMAS Anzac in 1965, before joining HMAS Sydney. His drinking increased throughout his service and has continued ever since, apart from a three-year period of abstinence. In all the circumstances the Tribunal finds that by the time of operational service Mr Bawden already had an established pattern of heavy drinking which constituted alcohol dependence, and that clinical onset of the condition occurred in about 1965.
35 Despite its protestation at the beginning of [41] that, "In relation to the third step from Deledio the Tribunal is not making any findings of fact", the Tribunal plainly did make findings of fact in [40]. In the last sentence, it made a specific finding that, by the time of his operational service, Mr Bawden already had an established pattern of heavy drinking constituting alcohol dependence and that the clinical onset of that condition occurred in about 1965. This was far removed from the Deledio process. A finding that the material points to a hypothesis of the kind required by the first step in that process cannot involve findings as to when events occurred or did not occur. Clearly, a hypothesis that located the clinical onset of alcohol dependence at a time prior to the occurrence of the sampan incident would not have established a causal relationship between the sampan incident and Mr Bawden's alcohol dependence. The Tribunal had no business determining that a hypothesis involving those facts was demonstrated by the material. The Tribunal ought to have addressed itself to the hypothesis that Mr Bawden was obviously seeking to raise, namely that it was the sampan incident that led to the onset of his heavy drinking and therefore to his alcohol dependence. The Tribunal needed to determine whether the material raised that hypothesis. In this respect, the Tribunal might have focused on the evidence that Mr Bawden had told one medical practitioner that the heavy drinking commenced after the traumatic events on HMAS Sydney, and on the evidence that he began to consume methylated spirits and medicated wine after he left HMAS Sydney in 1969. Had it done so, it might have found, in accordance with the first step of the Deledio process, that the material disclosed a hypothesis connecting Mr Bawden's alcohol dependence with the sampan incident, and therefore with his operational service. Instead of doing this, the Tribunal made findings as to an irrelevant hypothesis at [40].
36 At [42], the Tribunal went a step further. It said:
In view of its finding, that the sampan event did not constitute a traumatic event or severe stressor that evoked a response involving intense fear, helplessness or horror that would satisfy the criteria for a diagnosis of PTSD, the material does not point to a reasonable hypothesis linking Mr Bawden's alcohol dependence to his operational service with respect to factors 6(b) and 6(c) of SoP No 1 of 2009, and also factors 5(b) and 5(d) of SoP No 76 of 1998.
The factors to which the Tribunal referred were those relating to the experiencing of category 1A or category 1B stressors or other events that qualified as severe stressors. Once again, at [42], the Tribunal was making findings of fact. It was not comparing a hypothesis with a statement of principles to see whether the hypothesis fitted the template in that statement. It was comparing its own earlier findings of fact about the sampan incident with that template. This was not the process that the Tribunal should have been following.
37 At [43], the Tribunal said:
In respect of factor 6(a) of the SoPs, in view of the Tribunal's conclusion about the date of clinical onset of alcohol dependence, in 1965 Mr Bawden did not suffer from a clinically significant psychiatric condition, so the material does not point to a reasonable hypothesis linking Mr Bawden's alcohol dependence to his operational service with respect to factor 6(a) of SoP No 1 of 2009 or factor 5(a) of SoP No 76 of 1998.
This paragraph demonstrates the confusion of the Tribunal. It referred to its finding about the date of clinical onset of alcohol dependence, made a new finding that Mr Bawden did not suffer from a clinically significant psychiatric condition in 1965, and then stated a conclusion about the reasonableness of a hypothesis. The use of fact-finding at either the first stage or the third stage of the Deledio process was illegitimate.
38 Not surprisingly, the Tribunal then expressed the conclusion at [44] that the hypothesis was not reasonable and did not fit the relevant statements of principles, so Mr Bawden did not satisfy the third step. For this reason, the Tribunal said it was satisfied beyond reasonable doubt that there was no causal connection between his alcohol dependence and his operational service.
39 In this process of reasoning, the Tribunal did not follow the four steps set out in Deledio. It failed to take the first step correctly, by identifying what hypothesis the material did disclose (if any) that would lead to a conclusion that the necessary causal connection was established. Instead, by making findings of fact, the Tribunal constructed another hypothesis that would not make that causal connection. It diverted itself to examining this hypothesis against the relevant statements of principles, making more findings of fact as it did so. It seems clear that, in making the findings of fact it did, the Tribunal was not applying the negative beyond reasonable doubt standard.
40 In reasoning in this way, the Tribunal erred in law.
41 The Tribunal then turned its attention at [45]-[54] to the question whether Mr Bawden's depressive disorder was war-caused. Again, the Tribunal found the material pointed to a hypothesis connecting this condition with the circumstances of the service rendered by Mr Bawden. Again, it did not specify what the hypothesis was. After referring to the two relevant statements of principles, the Tribunal turned to the question of clinical onset. At [51], it said that, "Although there is difficulty in being precise, on balance the Tribunal finds that clinical onset of depressive disorder occurred in about 2006". Clearly, the Tribunal was engaging in fact-finding about the date of clinical onset. It was doing so, as it said, "on balance" and not by applying the standard in s 120(1) of the Veterans' Entitlements Act. It was doing so at the third step of the Deledio process, where it ought not to have been finding facts, but ought to have been comparing a hypothesis to the template in a relevant statement of principles. Indeed, the Tribunal was purporting to engage in that exercise, but was doing so by finding facts.
42 The Tribunal continued with this process at [52]. It referred to "its finding that the sampan event did not constitute a traumatic event or severe stressor that evoked a response involving intense fear, helplessness or horror" and relied on that finding to conclude that the material did not point to a reasonable hypothesis linking Mr Bawden's depressive disorder to his operational service with respect to factors that required the experiencing of stressors. Reliance on an earlier finding of fact, expressly made on the "reasonable satisfaction" standard, was impermissible at any stage, but particularly at the third stage, of the Deledio process. Again, the Tribunal erred in law in finding that the hypothesis was not a reasonable one and did not fit the relevant statements of principles and that it was therefore satisfied beyond reasonable doubt that there was no causal connection between Mr Bawden's depressive disorder and his operational service.