Consideration of the issues
13 The first ground raises for consideration the meaning of the expression "clinical onset" in SoP1. It is an expression whose meaning has been considered by the Tribunal on several occasions including in Re Robertson & Repatriation Commission (1998) 50 ALD 668 and Re Witten & Repatriation Commission (1998) 54 ALD 605. It was also considered by Branson J in Repatriation Commission v Cornelius [2002] FCA 750. In that matter a veteran had engaged in repetitive work maintaining small arms and subsequently developed carpal tunnel syndrome. The relevant Statement of Principles provided that the clinical onset of the carpal tunnel syndrome had to be no more than 30 days after the repetitive work ceased. Her Honour said at [26]:
Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression "clinical onset" as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that
:
"… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…."
By inference the Tribunal rejected the view of "clinical onset" taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression "clinical onset" in clause 5(a) of the SoP. For present purposes, therefore, Professor Sambrook's opinion that "[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993" (see [8] above) may be disregarded.
The opinion her Honour was referring to in the first sentence concerned whether the Tribunal was satisfied the material before it pointed to the relevant repetitive activities not having ceased more than thirty days before the clinical onset of the respondent's carpal tunnel syndrome.
14 The meaning of "clinical onset" was also referred to by Weinberg J in Repatriation Commission v Gosewinckel [1999] FCA 1273, (1999) 59 ALD 690 in the context of SoP48 and generalised anxiety disorder. His Honour said at [64] and [67]-[68]:
The SoP requires the presence of a number of distinct symptoms, of which "clinically significant distress" and "restlessness or feeling keyed up or on edge" are only part. Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A) to (F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.
The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of "purely medical … issues" out of the hands of bodies such as the AAT - Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable - see Deledio v Repatriation Commission (supra) at 411-2. An hypothesis that fails to fit within the template will be deemed not to be "reasonable", and the claim will fail.
The hypothesis which the AAT found to be reasonable, namely, that the veteran experienced the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event (ie within two years of the conclusion of the war) was not upheld by the relevant SoP. The AAT could not, therefore, have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran's generalised anxiety disorder was not war-caused.
15 Counsel for the appellant submitted that in relation to a disease of gradual onset, which might include generalised anxiety disorder, one should approach the question of clinical onset within the two year period on the footing that it would be sufficient if only one of the prescribed symptoms may have manifested itself. It was submitted that this aspect of the applicable Statement of Principles was not directed to diagnosis but only causation.
16 However this approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme. In relation to SoP1, the definition of "generalised anxiety disorder" does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is par C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. In our view, the Tribunal did not err in its approach to the meaning of the expression "clinical onset".
17 The second issue raised by the appellant concerned the approach of the Tribunal to the evidence. In a passage set out earlier (at [9] above) the Tribunal said there was no material pointing to the clinical onset of the appellant's generalised anxiety disorder within two years of stressors. In the two preceding paragraphs the Tribunal refers to the evidence of the appellant and also the evidence of Dr Ewers. It is not suggested by counsel for the appellant that the appellant himself gave evidence before the Tribunal about when the symptoms (or features) of his generalised anxiety disorder were first manifest. However counsel for the appellant points to evidence of Dr Ewers which does address this factual question. The evidence is found in both the oral evidence of Dr Ewers and in a report dated 15 December 2000.
18 When giving evidence before the Tribunal, Dr Ewers was asked a series of questions by the presiding Deputy President. The questions concerned the symptoms the appellant had experienced and also what the appellant had said about when he first experienced them. The following exchange is of particular relevance:
Symptoms in the past?-- Yes, let's see. This goes back to my original notes. Yes, in terms of symptoms in the past, once again mentioned the alcohol abuse but as I understood it, that occurred on the Sydney but he was having difficulty coping, that he often felt stressed particularly in the workplace, that he was in conflict with people possibly due to irritability, that he was abusing alcohol over the years. Yes, so there's a number of symptoms in keeping with anxiety and alcohol abuse, that's right.
When did those symptoms start?-- Soon after-well, either in Vietnam or soon after he returned.
He specifically said that to you?--- Yes.
19 In his report of 15 December 2000, Dr Ewers said:
I asked Mr. Lees to tell me in more detail of the emotions he experienced during the above traumas. Mr. Lees gives a clear history of the above events evoking intense feelings of anxiety and stress. Mr. Lees told me that he was troubled by anxiety in the months that followed the stresses that I have described. He was also troubled by insomnia. Upon more specific enquiry he said "I was fairly keyed up most of the time. I used to worry a lot". Mr. Lees told me that he increased his alcohol consumption considerably to try and control these symptoms. He particularly recalls abusing alcohol in 1970, bearing in mind that he went to Vietnam in December of 1969. You will note, in my report dated 25th March 1999, that Mr. Lees experienced anxiety and tried to cope by abusing alcohol upon returning from Vietnam. I also stated that he was "more emotional".
Re: Allan LEES
Mr. Lees also told me that he was troubled by headaches during 1970.
Mr. Lees' wife recalls that her husband was anxious and "worrying all the time" in 1972. This was when she met him. She remembers "he was always drunk".
DIAGNOSIS
I am still of the opinion that Mr. Lees suffers from a Generalized Anxiety Disorder and Alcohol Abuse.
Upon carefully reviewing the chronology of events, it would seem that Mr. Lees' Anxiety Disorder started to emerge in 1970. It certainly preceded the development of his Alcohol Abuse which emerged in 1970 but after he developed an Anxiety Disorder.
20 It can be seen from this evidence that a finding might be made that the appellant had told Dr Ewers that he had felt keyed up, had difficulty falling asleep and had been irrritable within a period of two years from experiencing the psychosocial stressors. These are three of the symptoms listed in par C of the definition of "generalised anxiety disorder".
21 Counsel for the appellant submitted that even in proceedings in which the laws of evidence apply, evidence of a doctor of facts recounted to him or her by the patient and on which the doctor's opinion is based, is probative of those facts. Reference was made to s 60 and s 72 of the Evidence Act 1995 (Cth) and Ramsay v Watson (1961) 108 CLR 642, Lee v The Queen (1998) 195 CLR 594, Welsh v R (1996) 90 A Crim R 364 and Lardil & Ors v Queensland [2000] FCA 1548. The Tribunal is not bound by the rules of evidence: see s 33(1) of the Administrative Appeals Tribunal Act 1976 (Cth) and is obliged, by s 120(3) of the Act to consider all material before it in determining whether a reasonable hypothesis is raised.
22 Counsel for the appellant submitted that the Tribunal failed to consider the evidence of Dr Ewers (both oral and in his report) concerning what he had been told by the appellant about when the symptoms were first manifest. We accept that in the context of proceedings in the Tribunal, the evidence of Dr Ewers concerning what he was told by the appellant about the symptoms might be viewed as probative of when they were first manifest. If, on a fair reading of the Tribunal's reasons, it can be inferred that it did not pay regard to this evidence of Dr Ewers, then it may have failed to discharge the obligation imposed by s 120(3). It would not be, however, a failure to take into account relevant considerations as submitted by counsel for the appellant.
23 It is true that in its reasons (in the passage set out at [9] above) the Tribunal said that the evidence of Dr Ewers points to the appellant suffering a high level of anxiety, experiencing tension headaches and being troubled by insomnia and poor concentration but suffering from them only in the months immediately preceding the appellant discovering that he had hepatitis B (in 1997). However, while this may reflect some of the evidence of Dr Ewers, it does not appear to involve a consideration of what was said by Dr Ewers in the evidence set out at [18] - [19] above. In addition the statement of the Tribunal that there was "no material" pointing to the clinical onset of the appellant's generalised anxiety disorder within two years of the stressors, is fairly emphatic.
24 We accept that the reasons of the Tribunal should not be scrutinised with an eye attuned for error. As Emmett and Allsop JJ (Moore J agreeing) said in Bull v Repatriation Commission [2001] FCA 1832, (2001) 66 ALD 271 at [34] concerning how a Court should assess whether the Tribunal has considered all the material before it:
We have examined the factual material referred to by the Tribunal at paras [3] to [21] of its reasons and the submissions of the appellant and we cannot conclude that the statement by the Tribunal in the first sentence of para [35] of its reasons that it had examined all the material before it was not an accurate reflection of what the Tribunal did. This is so especially in the light of the various statements in the cases that it is not incumbent on a Tribunal to cover every aspect of every factual matter: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620, 621 (per Fox J); Bisley Investment Corp v ABT (1982) 40 ALR 233; and FCT v Caneiro (1988) 15 ALD 368, 369; and in the light of the approach not to examine the Tribunal's reasons with an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
25 However, even approaching the Tribunal's reasons in the present matter with these principles in mind, it is difficult to avoid the conclusion that the Tribunal did not consider the evidence of Dr Ewers about what he was told by the appellant as evidence which might bear upon the question of whether the clinical onset of the appellant's generalised anxiety disorder occurred within two years of the stressors. We should add that this is not surprising given that no submission was apparently made by the legal representatives of the appellant to the Tribunal that Dr Ewers could be used for this purpose. Nonetheless that evidence did form part of the material that the Tribunal was obliged by s 120 to consider. In this respect, the Tribunal erred.
26 However, was the error a material one? It is to be recalled that par C of the definition of "generalised anxiety disorder" requires not only that three of the six specified symptoms be associated with anxiety and worry but that some of them be present for more days than not during the previous six months. In context this means in the six months preceding the manifestation of the symptoms within two years, although it is not essential that the condition in fact be diagnosed during that period. Some of the evidence of Dr Ewers concerning what he was told by the appellant might establish the existence of the symptoms within that period but not the frequency with which they were experienced. However Dr Ewers does record in his report that the appellant was keyed up most of the time. This evidence may support a conclusion that at least this symptom was present for the requisite period of time. If so, it might satisfy the definition of "generalised anxiety disorder" insofar as it says "some symptoms (should be) present for more days than not during the previous six months". Accordingly it is not possible to say the error is immaterial.
27 In the result, the decision of the Tribunal should be set aside, the matter remitted to the Tribunal differently constituted and the respondent ordered to pay the appellant's costs.