Delahunty v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the AAT"), which affirmed a decision of the Veterans' Review Board ("the Board") refusing a claim for post traumatic stress disorder made by the appellant, Mr Delahunty ("the veteran"). 2 The ground of appeal in the Notice of Appeal was that it was not open to the AAT to hold that the material before it did not raise as facts that the veteran had "experienced a severe stressor" as defined in clause 8 of the relevant Statement of Principles ("SoP"), namely that there was no material before the AAT that the veteran had experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or threat to another person's physical integrity. 3 When the matter came on for hearing, the above ground was not modified in substance but there was added to the formulation a statement that there was material that pointed to the veteran having witnessed an event that involved actual death in the context of an engagement with the enemy, being the destruction of sampan. A sampan is a flat-bottomed Asian boat, covered with a house, that is sometimes used for permanent habitation. The veteran sought leave to file an Amended Notice of Appeal containing an additional ground, which was opposed by the respondent, as follows: "(2) The Tribunal erred in construing the Statement of Principles as applying to that element of the Applicant's hypothesis that was based on a belief that a woman and children were aboard the sampan. The Tribunal should have dealt with that element of the hypothesis … in accordance with s 120(3)." 4 For reasons which I elaborate below, I refuse leave to add this second ground of appeal. I do not consider that there is any substance in this ground because it involves a substantial modification of the hypothesis which was advanced by the veteran, and on the basis of which the hearings below were conducted. By this amendment, the veteran now seeks to advance a wider hypothesis, namely, that being confronted with the probable death of one or more persons constitutes the experience of a severe stressor under the relevant SoP. 5 The relevant legislation is the Veterans' Entitlement Act 1986 (Cth)("the Act") and the relevant provisions are as follows: "9 War-caused injuries or diseases (1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease; if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; … but not otherwise." 6 It is common ground that the incident that the veteran claims caused his post traumatic stress disorder occurred while the veteran was on operational service. 7 Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. 8 Sections 120 and 120A of the Act relevantly state: "120 Standard of proof (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120B. 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; … (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does not propose to make such a Statement of Principles. (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196(B)(2) or (11); or (b) a determination of the Commission under subsection 180(A)(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196(B)(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be."