Fogarty v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an application by way of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of the Veterans' Review Board that the conditions of ischaemic heart disease ("IHD") and generalised anxiety disorder ("GAD") suffered by William Francis Fogarty ("the veteran") had not been war-caused. The decision of the Tribunal was made on 24 August 2000 when the veteran was still living and he lodged the present appeal. However, while the appeal was pending, the veteran died on 13 July 2001 and the present applicant, his widow, Olive Mildred Fogarty, was approved by the Repatriation Commission as the person to continue the appeal pursuant to s 126 of the Veterans' Entitlement Act 1986 ("the Act"). Accordingly, I shall order that the application to this Court be amended by substituting the said Olive Mildred Fogarty as the applicant. 2 The veteran was born on 1 June 1922 and served in the Royal Australian Navy from 30 September 1940 to 4 January 1946. That period of service is accepted on both sides as "eligible war service" as defined in the Act. Because that service was rendered on Royal Australian Navy ships in South-Western Pacific waters, it is also common ground that the whole of the veteran's service was "operational service" as defined in the Act. 3 The respondent Commission has conceded that the appeal should succeed in respect of the condition IHD and that such part of the Tribunal's decision as is related to IHD should be set aside and the matter the subject of that part of the decision be remitted to the Tribunal to be heard and determined according to law. The error of law which is accepted as infecting the IHD part of the Tribunal's decision is its failure to apply to the principles enunciated by a Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio") and by its making of a finding of fact at the third stage when it said it preferred the evidence of Dr Kenny to that of Dr Cole; see McKenna v Repatriation Commission (1996) 86 FCR 144. 4 It is common ground that the Statement of Principle ("SoP") applicable to the veteran's claim in respect to the remaining condition of GAD was No 48 of 1994 which recites; "1. Being of the view that there is sound medical-scientific evidence that indicates that generalised anxiety disorder and death from generalised anxiety disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder or death from generalised anxiety disorder, with the circumstances of that service, are: (a) having been a prisoner of war; or (b) experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or (c) experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder; or (d) inability to obtain appropriate clinical management for generalised anxiety disorder. 2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(d) must be related to any service rendered by a person. 3. The factors set out in paragraphs 1(c) and 1(d) apply only where: (a) the person's generalised anxiety disorder was suffered prior to a period, or part of a period, of service to which the factor is related; and (b) the relationship suggested between the generalised anxiety disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5)(A)(d) of the Act. 4. For the purposes of this Statement of Principles: "generalised anxiety disorder" means a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV): (a) excessive anxiety and worry (apprehensive expectation) occurring more days than not for at least six months, about a number of events or activities (such as work or study), which: (i) the person finds difficult to control; and (ii) which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months: (A) restlessness or feeling keyed up or on edge; (B) being easily fatigued; (C) concentration difficulties or mind going blank; (D) irritability; (E) muscle tension; (F) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and (iii) the focus of which is not confined to features of an Axis 1 disorder, for example, it is not about: (A) having a Panic Attack (as in Panic Disorder); or (B) being embarrassed in public (as a Social Phobia); or (C) being contaminated (as in Obsessive-Compulsive Disorder); or (D) being away from home or close relatives (as in Separation Anxiety Disorder); or (E) gaining weight (as in Anorexia Nervosa); or (F) having multiple physical complaints (as in Somatization Disorder); or (G) having a serious illness (as in Hypochondriasis); and (iv) it does not occur exclusively during Post-Traumatic Stress Disorder; and (v) either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and (b) which is not due to the direct physiological effects of: (i) a drug of abuse; or (ii) a medication; or (iii) a general medical condition (such as hyperthyroidism); and (c) which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Development Disorder. "DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders; "stressful event" means an occurrence which evokes feelings of anxiety or stress." 5 The Tribunal noted that the veteran had not consumed alcohol at all before he joined the Navy. Its findings in respect of the veteran's consumption of alcohol and his claim to suffer from GAD were as follows; "32. As he recorded in his written statements, Mr Fogarty asserted that he first started consuming alcohol after joining the Navy. He was then 18 years of age and continued to drink throughout his naval service. Again as recorded in his written statements, Mr Fogarty's evidence was that he drank alcohol whenever he went ashore, to relieve stress and tension, and "to be one of the boys". While serving in VICTORIA, his level of consumption routinely averaged "about 8 beers approximately every second day". 33. Again, as recorded in his statement dated 6 August 1999, it was Mr Fogarty's assertion that after discharge he continued to drink, meeting with friends at a hotel every Friday evening after work. He stated that on these occasions he would drink eight or more glasses of beer. He would also drink on other social occasions. 34. Mr Fogarty's evidence was that by 1957 he was drinking four glasses of beer per day, sometimes from six to eight glasses per day, even more at weekends. As he recorded in his statement dated 6 August 1999, this pattern continued until 1988, when he said he started to "ease down" because he was experiencing major health problems. He more or less ceased drinking in 1994. ... … … 37. Mr Fogarty stated in cross-examination that he finally ceased consuming alcohol in the early 1990's. 38. It was Mr Fogarty's evidence that he has never been diagnosed with psychiatric condition (including GAD), although he has been told by two GP's that they considered he had a GAD. 39. When asked what were the main occasions when he drank alcohol, Mr Fogarty stated: "As I said before Friday would be the, when my dad was alive, would be the main night. But then there would be reunions and things like that, there'd be main days. You'd have more than your six glasses on those occasions and you'd catch a cab home, or be driven home." (Transcript p. 26) When further asked whether this was because he was aware that it could be dangerous to drive after consuming that amount of alcohol, Mr Fogarty responded by stating: "Well you thought you knew when you'd had enough. But history has proven you didn't know." (Transcript p. 26) 40. In re-examination Mr Fogarty stated that he now realizes that he had driven "many many" times when on "today's situation" he should not have been driving." 6 The Tribunal then referred to a statement by the substituted applicant, Mrs Fogarty, about her husband's consumption of alcohol and made this reference to evidence given by Dr Cole, a consultant psychiatrist: "46. Mr Cole examined Mr Fogarty on 5 November 1999 but did not question him concerning his earlier smoking or drinking history. However, after reading the statements provided by Mr Fogarty and his wife, the doctor stated in his report dated 3 March 2000: "It is apparent that the veteran suffered from alcohol abuse until he ceased drinking in 1988 and that his drinking was related to his war service. His chronic generalised anxiety disorder would also have had the effect of causing him to drink more than he might otherwise have done." 47. It was Dr Cole's opinion that Mr Fogarty is suffering from a chronic GAD which was in evidence when he was discharged from the Navy and that the condition is attributable to his war-service: "In my opinion, he meets the requirements of the Statement of Principles for such a diagnosis. There was no suggestion that he might be exaggerating his symptoms, and, on the contrary, I think he is inclined to deny to himself the full extent of his anxieties. His nervous disorder is mild, does not call for psychiatric treatment and appears to have stabilised." (Exhibit A5) The doctor explained that he formed this view after having regard for the history provided by Mr Fogarty. 48. It was Dr Cole's further view that Mr Fogarty satisfied the criteria relevant to the definition of GAD contained in SoP No. 48 of 1994." 7 The veteran had also been examined by another consultant psychiatrist, Dr B Kenny, whose evidence was summarised by the Tribunal in these terms; "51. Dr Kenny saw Mr Fogarty on 21 July 1999. He then provided a report for the purposes of these proceedings, dated 22 July 1999 (Exhibit R2) 52. During his oral evidence Dr Kenny confirmed that he asked Mr Fogarty concerning his consumption of alcohol: "Yes. He said that he learned to drink, in the Navy, and he - the phrase he used was "used to give alcohol a bit of a nudge" - was the phrase he used - "for awhile there afterwards". But he said that it was never a problem to him. He'd never had any drink driving, no drunk and disorderly incidence, no broken relationships, no loss of jobs because of drinking and no illnesses because of drinking." (Transcript p. 43) 53. Dr Kenny explained that, because at the time he saw him Mr Fogarty gave him the impression alcohol had never been a problem for him, he did not estimate the actual amount that Mr Fogarty consumed: "... but I looked at whether it appeared to have had any effect on his life, and it didn't, so my impression of him was that he did not suffer from alcohol abuse or psychoactive substance abuse." (Transcript p. 45) 54. It was Dr Kenny's view that Mr Fogarty does not have a psychiatric disturbance of any kind. Indeed, he viewed Mr Fogarty as a reasonably active and confident man for his age. 55. When asked during cross-examination whether, because he did not have an accurate assessment of Mr Fogarty's alcohol consumption level, he was not able to address SoP No. 5 of 1994 (Psychoactive Substance Abuse or Dependence) in detail, the doctor confirmed that this was so. 56. It will be noted that during his evidence Mr Fogarty made reference to medication ("little pills") having been prescribed by his local GP in respect of "some sort of anxiety condition". When questioned concerning the nature of the treatment Mr Fogarty replied: "Only the little pills. And after 50 years I wouldn't know what they were. But I've heard certain names that rang a bell but I wouldn't put it on record in case it's wrong." (Transcript p. 27) 57. It was Dr Kenny's evidence that Mr Fogarty had informed him he "thought he had nerve tablets in the late 1950's". 58. When asked what effect the tablets would have on Mr Fogarty's nervous condition if they were Valium, Dr Kenny said: "Well, Valium is usually, of course, as a minor tranquilliser for anxiety and it would suggest that at that particular time he may well have been a somewhat anxious restless sort of person and one would expect that they might take the edge of that." (Transcript p. 49) The doctor then went on to state that, if Mr Fogarty continued to be an anxious type of person, he would not necessarily have had to remain on Valium mediation: "I mean, Valium is an elective medication. I mean, you prescribe it for a patient if on balance you and the patient think it is worthwhile to deal with the person's anxiety. If on the other hand the individual takes it and doesn't feel much better, doesn't like the idea of taking tablets, then one would not be putting pressure on him to keep taking them. So there would be a great degree of variation in whether the individual would need to keep taking them, but on the other hand people often have periods of anxiety in their life for whatever reason which with a bit of treatment in terms of medication or support may settle down and then resolved in which case the individual may not need to continue to take any medication of any kind." (Transcript p. 49) 59. When asked how a drug such as Valium would react with alcohol, Dr Kenny stated: "Well, any of these psychoactive drugs are inclined to react with alcohol so that you get - sometimes you get a summation of effects so that the Valium - it will, as it were, sometimes give the patient a start in terms of his drinking. It means, it is as though he has an extra three or four glasses or standard drinks in him before he starts drinking alcohol. So that is a well recognised sort of phenomenon." (Transcript p 49) 8 The Tribunal in its reasons quoted an extensive extract from Deledio (at 97) which, it noted, ordained the method to be followed by tribunals required to apply SoPs. It then concluded, after an examination of the evidence before it, that it "points to" hypotheses connecting the claimed disabilities of IHD and GAD with the veteran's war service. It identified some eight facts which were said to have that indicative effect and then proceeded to consider whether the hypotheses advanced were reasonable. Its observations under that heading in relation to GAD were; "63. In our opinion that the hypotheses pointed to by the material before us are not reasonable. That is to say the hypotheses, which are in respect of IHD and GAD, do not contain one or more of the factors determined by the RMA in the relevant SoPs, to be the minimum which must exist, and be related to the person's service. This includes the factors upon which Mr Fogarty relies. In other words, the hypotheses fail to fit within the "template", to be found in the relevant SoP's, and thus the claims must fail. ... … … 66. Finally, as we have recorded Mr Fogarty relies upon factor 1(b) of SoP No. 48 of 1994 in respect of his claim for GAD, that is to say experiencing a stressful event not more than two years before the clinical onset of GAD. 67. While we accept that Mr Fogarty experienced stressful service in the Navy, we have, however, formed the opinion that he never developed a GAD as a result of any aspect of his service. Indeed, his own evidence makes it very clear that since his naval service, Mr Fogarty has enjoyed not only a long and happy family life but also a most successful and rewarding working life, particularly while at the Trades Hall and then later in politics." 9 Mr De Marchi who appeared as solicitor for the applicant referred to sub-ss 120(1) and (3) of the Act which provide; "(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." 10 For the purpose of deciding, pursuant to s 120(3), whether the material before it raises a reasonable hypothesis, the Commission is required to have regard to an applicable SoP determined under s 196B. That requirement is imposed by s 120A(3) which provides; "(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 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis." 11 It was submitted on behalf of the applicant that s 119(1)(h) should be applied "to ameliorate any difficulty that lies in the way of ascertaining the existence of any fact, matter, cause or circumstances in making the enquiry." Section 119(1) provides, so far as is relevant; "(1) In considering, hearing or determining, and in making a decision in relation to: (a) a claim or application; ... … … the Commission: (f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; (g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and (h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to: (i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and (ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities." 12 It was next contended that the Tribunal had correctly accepted that a hypothesis had been indicated connecting the veteran's claimed GAD with his war service and had identified the relevant SoP in accordance with the method enunciated in Deledio. However, it was urged that the Tribunal had erred in law when it concluded at [63] of its reasons quoted at [8] above that "the hypotheses pointed to by the material before us are not reasonable." The Tribunal explained that by saying that the hypothesis in respect of GAD did not contain one or more of the factors determined in the relevant SoP to be the minimum which must exist and be related to the veteran's service. The Tribunal further explained its conclusion by saying; "In other words, the hypotheses fail to fit within the "template" to be found in the relevant SoPs and thus the claims must fail." 13 In relation to GAD the Tribunal noted that the veteran had relied upon factor 1(b) of SoP No. 48 of 1994, ie "experiencing a stressful event not more than two years before the clinical onset of GAD."