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.