Meehan v Repatriation Commission

The Tribunal's decision 2 In its reasons for decision, the Tribunal recorded that Mr Meehan served in the Royal Australian Navy from 3 January 1968 to 2 January 1980. He was a member of the crew of HMAS Sydney when, during the course of the Vietnam war, it made two trips to Vietnam. On each trip HMAS Sydney spent a day in the port of Vung Tau. These visits occurred on 15 February 1969 and 19 May 1969, when Mr Meehan was only 17 years of age. 3 In oral evidence, Mr Meehan claimed that, on each of the visits to Vung Tau, the ship was blacked out for some 24 hours and he was the upper deck sentry with responsibility to watch for divers or debris which could disguise mines. He said he was armed with an SLR rifle. Also, he acted as bowman in the landing craft ferrying soldiers and equipment to and from the ship: "He said that, at all times as sentry and bowman, he was afraid and thought he could die being in a war zone with no knowledge of how far away were any enemy. Scare charges were dropped near the ship with no set pattern or timing and they were very loud and startling particularly when off duty in the mess which was under the water-line. He could not recall whether scare charges were dropped when the ship was moving or only while at anchor. He accepted that no shots were fired and he did not see any killed or injured. He said that some large canvas-type bags were carried on to the ship and, not having seen them before, assumed that they were body bags. He said that the returning soldiers appeared old, tired and 'cranky' and he became concerned at leaving new troops behind if they were to finish in the same state. He was firm in his recollection of seeing two rockets fired towards 'Radar Hill' which was some 1000 metres from the ship. He did not know who fired them or anything else about them." 4 The Tribunal noted Mr Meehan's claims about psychological disturbances he commenced to suffer after the visits to Vung Tan. The applicant's wife, who met him in 1988, also gave evidence about his experiencing psychological problems. 5 The Tribunal also noted evidence provided by three psychiatrists. 6 Dr Graham Altman had treated Mr Meehan over a period of four years and believed he suffers severe chronic post traumatic stress disorder with major depression. Dr Altman thought, if he was wrong about that, the next most obvious diagnosis was generalised anxiety disorder with major depression. 7 Dr Anthony Dinnen opined that Mr Meehan suffers from generalised anxiety disorder and psychoactive substance dependence, the latter condition being in remission. He thought that both conditions were present before Mr Meehan's naval service but were aggravated by that service. Dr Dinnen believed Mr Meehan's generalised anxiety disorder had been masked by his alcohol abuse until recent years, when he stopped drinking on a chronically heavy basis. 8 Dr Maxine Walden saw Mr Meehan on behalf of the Commission. She rejected both post traumatic stress disorder and generalised anxiety disorder. 9 After setting out, in some detail, the opinions of each psychiatrist, the Tribunal recorded counsel's submissions in relation to the question whether Mr Meehan suffered from post traumatic stress disorder or generalised anxiety disorder. 10 The Tribunal then went on, in para 17 of its reasons: "There are two issues in this case. The first is to establish the appropriate diagnosis of the condition from which the veteran suffers. Pursuant to section 120 of the Veterans' Entitlements Act 1986 ('the Act') the diagnosis has to be made out to the reasonable satisfaction of the Tribunal standing in the shoes of the respondent, that is, on the balance of probabilities. Having established the diagnosis, section 120(3) of the Act requires the material before the Tribunal to raise a hypothesis connecting the conditions claimed with the circumstances of the veteran's operational service. Under section 120A, if there is in force a SoP issued by the Repatriation Medical Authority in relation to the condition, then the hypothesis is reasonable only if the relevant SoP upholds such hypothesis. The relevant SoPs here are those concerning PTSD [post traumatic stress disorder] (Instrument No 15 of 1994), GAD [generalised anxiety disorder] (Instrument No 48 of 1994 as amended by Instrument No 275 of 1995) and personality disorder (Instrument No 143 of 1995). The SoPs list the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. For the condition of PTSD, the applicant relied on factor 1(a) 'experiencing a stressor prior to the clinical onset of post traumatic stress disorder'. For the condition of GAD, the applicant relied on factor 1(b) 'experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder'. For the condition of personality disorder the applicant relied on factor 1(b) 'inability to obtain appropriate clinical management for personality disorder'. 11 The Tribunal then dealt, in turn, with each of the three conditions it had mentioned. As the applicant now confines his complaint about the Tribunal's handling of the case to the issue of generalised anxiety disorder, I need refer only to what the Tribunal said about that condition, in para 20 of its reasons: "It is possible that Mr Meehan suffers from GAD. The SoP for generalised anxiety disorder defines that condition as follows: '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 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 in 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 Developmental Disorder. Given the difficulty of obtaining agreement between psychiatrists of a precise diagnosis of psychiatric disorders, it is difficult to form a clear opinion of Mr Meehan's condition. The majority of psychiatrists who have examined him have formed the view that he suffers from an anxiety disorder. Certainly, the symptoms described by him appear to satisfy the definition in the SoP. However, it also appears more likely than not that, if he suffers from an anxiety disorder, that disorder was present prior to his service with the Navy. In addition, there is no evidence to satisfy me, on the balance of probabilities, that the accepted stressful event in Vung Tau in 1969 occurred less than two years 'before the clinical worsening of generalised anxiety disorder'. As a consequence, Mr Meehan does not satisfy the requirements of the relevant SoP for GAD." 12 In para 22 of its reasons, the Tribunal commented: "On balance, it would appear that Mr Meehan suffers from a longstanding personality disorder with an overlay of an anxiety disorder. A feature of the former disorder which was noted by the psychiatrist who gave evidence was the likelihood of the sufferer exaggerating an external event as the cause of his problems. I am not satisfied that the events in Vietnam, while somewhat stressful to a 17 year old, were as stressful or traumatic as Mr Meehan's now unreliable memory sees them." Counsel's submissions 13 Mr Craig Colborne, counsel for the applicant, submitted the Tribunal applied the incorrect standard of proof in determining whether or not his client suffered from generalised anxiety disorder, or an aggravation of that condition, as a result of his naval service; the Tribunal determined both these matters by reference to the balance of probabilities, not the "reverse criminal standard" referred to in s 120(1) of the Act. 14 Mr Colborne pointed out that para 17 of the Tribunal's reasons refers to the diagnosis being made out on the balance of probabilities. Paragraph 20 opens by saying it "is possible" that Mr Meehan suffers from generalised anxiety disorder, but concludes with two references to the balance of probabilities. The first reference is in the statement that it "appears more likely than not that, if he suffers from an anxiety disorder, that disorder was present prior to his service with the Navy". The second reference is in the statement about the absence of evidence "to satisfy me, on the balance of probabilities, that the accepted stressful event in Vung Tan in 1969 occurred less than two years 'before the clinical worsening of generalised anxiety disorder'." 15 Mr Colborne also noted the absence of any indication, in the Tribunal's reasons, that it had applied the four steps in decision-making prescribed by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Those steps were summarised by the Full Court (at 97-98) in this way: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." 16 Mr Colborne maintained this methodology applies as much to a determination about aggravation of a condition as a determination about the initial onset of a disease. He noted the definition of "disease", in s 5D of the Act, includes "any physical or mental ailment, disorder, defect or morbid condition … or any recurrence of such an ailment, disorder, defect or morbid condition". The definition excludes aggravation of such an ailment, disorder, defect or morbid condition; but only to the extent that aggravation results from normal psychological stress or the temporary effect of extraneous agents. Otherwise, aggravation is treated as being, itself, a disease. Indeed, s 9(1) specifically envisages that aggravation may be treated as the sustaining of a disease, for the purposes of the Act. Section 9(1) relevantly reads: "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: … (e) the injury suffered, or disease contracted, by the veteran: (i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or (ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; but not otherwise." [Emphasis added] 17 Counsel for the Commission, Mr Rhonda Henderson, argued the course taken in this case by the Tribunal accorded with the decision of the Full Court in Repatriation Commission v Cooke (1998) 90 FCR 307. That was a successful application, by way of appeal, against a decision of the Administrative Appeals Tribunal granting an application for a disability pension on account of war-caused anxiety state. The Tribunal had applied the "reverse criminal standard" prescribed by s 120(1) of the Act in determining whether the veteran suffered a generalised anxiety state. 18 Having regard to the dominant role of Cooke, in the argument presented to me, it is desirable to discuss that case in some detail. 19 As the Tribunal's hearing in Cooke, there had been an issue whether the veteran was suffering from any diagnosable disease at all: see para 24 of Tribunal Decision No 12614 dated 12 February 1998. The Tribunal had been pressed with the following statement by Lee J in Ferriday v Repatriation Commission (1996) 69 FCR 521 at 529: "The Commission submits that s 120(1) is directed at the question whether the injury which caused the veteran's incapacity resulted from an occurrence that happened while the veteran was rendering operational service and that other questions relevant to the determination of a claim for a pension, such as the claimant's status as a veteran or whether operational service had been rendered by the veteran, are not determined by reference to s 120(1), (3) but to the reasonable satisfaction of the Commission by application of s 120(4). The Commission submits that ancillary issues of like character, such as that arising under s 9(3), must be determined under s 120(4) in the same way. The Commission's submission is correct. Section 120 is concerned with facilitating the demonstration of the existence of a war-caused injury or disease where the veteran has rendered operational service. In effect, the section provides that if the material before the Commission relating to a veteran's claim raises a reasonable hypothesis connecting the injury or disease with the particular circumstances of the veteran's operational service, the injury or disease is to be taken to be war-caused unless it is proved to the Commission, beyond reasonable doubt, that the injury or disease is not war-caused within the meaning of s 120(1). Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under s 120(1) are facts to be established to the reasonable satisfaction of the Commission." 20 However, the Tribunal had thought this approach was inconsistent with the decision of Beazley J in Preston v Repatriation Commission (1993) 45 FCR 214 and, also, an observation of Brennan J Bushell v Repatriation Commission (1992) 175 CLR 408 at 426 in these terms: "If the material before the decision-maker satisfies the decision-maker beyond reasonable doubt that a morbid condition which might attract a pension does not exist or that the circumstances of operational service that might have a causal connexion with the morbid condition did not occur, there is no purpose in considering the operation of sub-s (3). But the decision-maker cannot be satisfied that the condition does not exist or that the circumstances did not occur unless the material establishes those negative conclusions beyond reasonable doubt." 21 The Tribunal concluded in Cooke: "It follows that the reverse criminal standard of proof applies. In order to find that the applicant is not suffering from an identifiable disease we must be satisfied beyond reasonable doubt of that matter. Given the difference of medical opinion on this issue, it would not be possible to reach such a finding." 22 Because the Tribunal that heard Cooke included the President, Mathews J, the Repatriation Commission's application in respect of that decision went directly to a Full Court (French, Drummond and Carr JJ). Their Honours disagreed with the Tribunal. They said (at 310): "We think that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a 'determination' that the disease is war-caused. This can be seen by examining the precise subject matter and purpose of s 120(1) as revealed in the language in which it is expressed. The subsection speaks of: • 'the' incapacity from injury or disease of a veteran; • 'the' death of a veteran and requires the Commission to determine that • 'the' injury was a war-caused injury; or • 'the' disease was a war-caused disease; or • 'the' death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The subject matter and purpose of the subsection are confined to the standard of proof of war-causation." 23 In her written submissions, Ms Henderson said: "Applying Cooke mutatis mutandis to the circumstances of the present case, it is plain that one of the issues which the Tribunal was required to determine under s 120(4) was whether an aggravation of the applicant's pre-existing generalised anxiety disorder occurred. If an aggravation had occurred, then the ultimate question to be determined was whether the aggravation was connected with the particular service rendered by the applicant. [Sections] 120(1) and (3) were the relevant provisions to be applied when making that determination. In the paragraph which the applicant has criticised, the Tribunal referred to 'the accepted stressful event in Vung Tau in 1969'. That language, and in particular the word 'accepted', clearly indicated that the Tribunal was persuaded that the applicant experienced a stressful event in Vung Tau in 1969. Earlier in the same sentence the Tribunal stated that there was a matter on which it was not satisfied on the balance of probabilities. Clearly, it did not mean the 1969 event. It follows that the matter about which the Tribunal was not satisfied on the balance of probabilities was whether, within 2 years of the 1969 event, the applicant suffered a clinical worsening of generalised anxiety disorder. In short: the Tribunal was not satisfied that the applicant suffered an aggravation of his pre-existing disease within the time period specified in the relevant Statement of Principles. Given the Court's remarks in Cooke about the role of the various subsections of s 120, the existence of the aggravation was a matter to be determined on the balance of probabilities. The respondent therefore submits that the Tribunal did not fall into error." 24 In reply Mr Colborne referred to another passage in the judgment of the Full Court in Cooke. At 312 their Honours said: "First, the language of s 120(1) and (3) is so clear as to not raise any doubt on the point. Secondly, any suggested illogicality disappears when one focusses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question. Furthermore, one should not overlook the ameliorative effects of s 120(5) and (6) in relation to difficulties in establishing facts." [Emphasis added] Mr Colborne drew attention to the words I have emphasised. 25 Mr Colborne also cited two first instance decisions involving the application of Cooke. The first was Repatriation Commission v Gosewinckel [1999] FCA 1273; 59 ALD 690, a decision of Weinberg J. His Honour said (in para 49) that the principles governing "which standard of proof should be applied when determining whether a veteran is injured, or is suffering from a disease" are those stated in Cooke. In rejecting (in para 45) an argument that Cooke ought to be regarded as wrongly decided because of disconformity with the joint judgment of the members of the High Court of Australia in Byrnes v Repatriation Commission (1993) 177 CLR 564, Weinberg J commented: "The passage in the joint judgment, when read in context, is not a statement of principle which addresses the standard of proof in matters of diagnosis. It deals with proof of injury in the distant past; not with the veteran's present condition where that alone is in dispute. It is important to note that in Byrnes it was 'assumed' that the injury in question had occurred, whereas the very diagnosis of 'generalised anxiety disorder' is in dispute in the present case. Byrnes does not concern, or at least does not directly concern, the question of diagnosis of present illness or injury." 26 Mr Colborne suggested that Weinberg J understood the Cooke principle to cover only the question whether the veteran had contracted a disease (or suffered an injury), as distinct from the diagnosis of that disease or injury. 27 Mr Colborne argued this understanding is consistent with Budworth v Repatriation Commission [2001] FCA 317. In that case, Madgwick J pointed out, at para 37, that s 5D of the Act defines "disease" as referring to any physical or mental ailment, disorder, defect or morbid condition. His Honour commented: "When the threshold requirement is that the veteran be suffering from a disease, this should not be interpreted to mean necessarily a disease having a particular medical description which may be claimed to exist. Claimant veterans are not necessarily insightful, articulate, legally advised, medically advised or, in either respect, well advised. Veterans are not to be defeated because they or their advisors inadequately or incorrectly describe their diseases, whether or not they or their advisors resort to medical labels. A claimant whose advisors offer one diagnosis is not to be defeated if the decision-maker prefers another, provided that there is a disease and there is some reasonable basis for thinking that it is war-caused." 28 At para 39 Madgwick J upheld a submission that Cooke does not stand in the way of this conclusion: "The diagnosis of a particular condition may be dependent on its supposed wartime causation, as appears to be the situation in this case. In such circumstances, where questions of such causation are themselves bound up in the question of diagnosis of a particular disease, the reverse criminal standard should be applied if on the balance of probabilities the decision-maker finds that adisease exists. The Full Court in Cooke saw difficulties of proof of such causational issues as underlying the rationale for the more liberal approach. On the respondent's submissions, it would be possible, in effect, to determine on the balance of probabilities that claimed symptoms, given a particular medical label by doctors and accordingly so labelled by the applicant, were not war-caused because causation goes to diagnosis, when had that particular label not been used by the applicant, the question whether the symptoms (assuming they were not so negligible as not to comprise an 'ailment' or a 'disorder' …) were war-caused would require proof to the contrary beyond reasonable doubt. So much is unlikely to have been intended by the legislature to turn upon so little." [Original emphasis] 29 Mr Colborne's written submissions in reply contain the following: "The reference to a morbid condition suggests that Lee J was alive to the distinction between the presence of disease and its diagnosis. His distinction between matters that go to the question of causal connection and those that do no [sic] supports the view that when diagnosis goes to causation then s 120(1) and (3) apply in resolving any conflict. The reasoning of the Full Court in Cooke shows that the Court was doing no more than resolving the issue before it, namely; the standard of proof to be applied in determining whether disease, the subject of the claim is present. Furthermore, that reasoning is consistent with the conclusions reached in Budworth, which should be followed in preference to Gosewinckel." [Original emphasis] 30 Finally, in respect of this aspect of the case, Mr Colborne contended the reasoning in Cooke has no relevance to an issue of aggravation. He points to the comment in Cooke, quoted at para 22 above, about s 120(1) specifying "the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran". His point is that aggravation, by definition, relates to the operational service of the veteran. Accordingly, assessment of the issue of aggravation will necessarily involve assessment of events that took place during the veteran's service, which could have been half a century earlier.

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