Guy v Repatriation Commission

legislative provisions 6 Section 13(1) of the Act renders the Commonwealth liable to pay a pension to a veteran where that veteran has become incapacitated from a war-caused disease. Section 9 sets out the circumstances in which a disease can be taken to be war-caused. These circumstances include if a veteran contracts a disease as a result of an occurrence that happened while the veteran was rendering operational service. It is common ground, in the present case, that Mr Guy was engaged in operational service. 7 The standard of proof to be applied to the question of whether a disease is war-caused is set out in s 120 of the Act. Where a claim relates to operational service, the standard of proof is prescribed by ss 120(1) and (3). 8 In Repatriation Commission v Deledio (1998) 83 FCR 82 at 91-2, the Full Court described the way in which those subsections are to be applied as follows: "(1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact. (2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it. (3) Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point. (4) If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis." 9 Section 120A of the Act is concerned with the reasonableness of the hypothesis. Section 120A(3) states that, for the purposes of 120(3), a hypothesis connecting an injury suffered by a person or a disease contracted by a person or the death of a person with the circumstances of the 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), … that upholds the hypothesis." 10 The relevant Statement of Principles in this case is entitled Alcohol Abuse and Dependence (SoP No. 76 of 1998) ("the SoP"). Clause 5 of the SoP sets out the factors which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or abuse with the circumstances of the person's relevant service. The applicable factors are: "(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or … (d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; …" 11 The expression "experiencing a severe stressor" is defined in cl 8 to mean: " … the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the persons or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror. In the setting of service in the Defence Forces, or other service where the Veterans Entitlements Act applies, events that qualify as severe stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence." (Emphasis added) 12 The question for determination is whether the veteran has experienced a severe stressor within the above SoP.

Relevant reasoning 13 The Tribunal accepted that a hypothesis was raised connecting Mr Guy's operational service with his consumption of alcohol. 14 At [53]-[54] and [56], the Tribunal decision states: "As to whether the applicant experienced a severe stressor we are satisfied that the only event experienced by the applicant during operational service that might evoke intense fear, helplessness or horror in a person, was the incident in Hong Kong where there was a perceived threat that he might be electrocuted. Such a perception was certainly open on the facts as related to us and it is apparent, on the evidence, that the applicant and others perceived at the time that there was a risk of serious injury or death. Whether the event in the boiler was such that it could be said that it might evoke intense fear, helplessness or horror is however not apparent to us. Clearly there was what might be described as an anxious moment while the applicant removed himself from the boiler and the electricity was disconnected, but there was no incident which, in our view, could be described as an event that might evoke intense fear, helplessness or horror. The applicant reacted as any reasonable person would react, by removing himself from the danger. [54] We are not satisfied that the applicant experienced a severe stressor, as defined, during his operational service. … [56] There were two events that might be described as stressful events: (a) The boiler cleaning incident in Hong Kong; and (b) The Shoalhaven closing down for action stations while in Korean waters. As to the first incident we have already described it as an anxious moment and we do not accept that it could result in physiological stress. … (Emphasis added) 15 The submission of counsel for the appellant is that the Tribunal erred in not treating the perception of a threat in the boiler room as being sufficient and instead requiring that there must be an objective actual threat to the appellant's safety or physical integrity. Counsel referred to several decisions on the meaning of "severe stressor" within the SoP. 16 The first case referred to was Repatriation Commission v Stoddart (2003) 134 FCR 392, where the Full Court said, at [29]-[30]: "It is not open to serious doubt that the Tribunal accepted the Repatriation Commission's submission to it that the 'threat of death or serious injury' referred to in the SoPs was an actual threat and not merely a perceived threat. As counsel for the Commission put it (in terms that resonate in the Tribunal's reasons): 'This is actually an objective test of what actually happened': Supp. Appeal Book, p 175. The primary judge was correct in identifying this both as the course taken by the Tribunal and as the source of its error: …" (Emphasis added) 17 In the other decision referred to by counsel for the appellant, namely, Woodward v Repatriation Commission (2003) 131 FCR 473, the Full Court adopted and followed the explanation of the meaning of "threat" as used in the SoP definition. The definition did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances. At [139], their Honours said: "… the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc., if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, 'experiencing' should be construed as having at least this partially subjective connotation." (Emphasis added) 18 In the present case, the Tribunal accepted that the boiler room incident occurred and that this incident was such that it could be said that it might evoke intense fear, helplessness or horror ("the relevant emotions"). Furthermore, it accepted the evidence that the appellant had perceived that there was a risk of serious injury or death. Yet, notwithstanding this, the Tribunal focused on the fact that the appellant had acted as a reasonable person would react and removed himself from the danger. On this basis, it concluded that the veteran had actually suffered only "an anxious moment" and that, in fact, there was no incident which might evoke the relevant emotions. 19 This reasoning by the Tribunal is self-contradictory and indicative of an error of law. Once it is accepted that the veteran had perceived that there was a risk of serious injury or death and was confronted with an event which might evoke the relevant feelings, the definition in the SoP was satisfied. The Tribunal, in my view, in reaching its conclusion that the veteran had not experienced a severe stressor because there was only "an anxious moment" was applying the wrong test. Rather than asking whether the incident was of a type which might, as the Tribunal found, evoke the relevant emotions, the Tribunal asked whether the incident did evoke these emotions. Hence the reference to the incident being only "an anxious moment". 20 The correct approach to take is to ask whether the event might, or could possibly, evoke the relevant emotions. Despite its initial finding on this question, the Tribunal made a contradictory finding, without any explanation, that there was no severe stressor within the definition in the SoP. This contradictory finding indicates to me that, in applying the definition, the Tribunal must have misdirected itself or misunderstood the definition. In my view, it is not conclusive whether the veteran left the boiler room, thereby removing himself from the danger. The focus is rather on the type and nature of the danger, namely, whether it can be characterised as being capable of evoking the relevant emotions. 21 Ms Ford, for the Commission, submits that, on a fair and reasonable reading of its findings, taken in context, the Tribunal found that there was a perceived threat which could satisfy the requirements of the definition but that the boiler incident was not sufficient to evoke the relevant emotions. Ms Ford says that this is a matter of fact. The Tribunal found that there was no sufficient threat to satisfy the high level of emotional disturbance required by the definition. Ms Ford referred to the extreme examples given in the definition, namely, engagement with the enemy or observing atrocities or abusive violence. On this approach, the Tribunal, although finding there was a relevant event, namely, a substantial threat, did not find that it was of a sufficient degree to fall within the definition. 22 In my view, the Tribunal did not fall into error by approaching the question in the manner referred to in Stoddart and Woodward, namely, by considering that an actual objective threat was required. However, in my opinion, for the reasons given above, the Tribunal did err in approaching the question on the basis that the veteran was able to remove himself from the danger and therefore the incident did not evoke the relevant emotions. 23 The Tribunal found, in the first section of [53], that: (i) The veteran experienced the boiler room incident; (ii) That this was an event that might evoke the degree of emotion required; and, (ii) The veteran perceived that there was a risk of serious injury or death. 24 On these findings, the veteran has established all the requirements required by the definition of "experiencing a severe stressor" and therefore should succeed. I therefore consider that the Tribunal has fallen into reviewable error. 25 Although there is a reviewable error on the findings made by the Tribunal, in view of the contradictory conclusions reached by it, I consider that the appropriate order is that the matter should be referred back to the Tribunal. Accordingly, I consider that the appeal should be allowed, the decision of the Tribunal be set aside and the matter remitted to the Tribunal for consideration in accordance with law. The respondents should pay the appellant's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Counsel for the Appellant: Bernadette Caster Nicoll

Solicitor for the Appellant: Sciaccas Lawyers and Consultants

Solicitor for the Respondent: Australian Government Solicitor