O'Neil v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 31 October 2000. 2 The essential issue in the appeal relates to the meaning of the definition of 'stressful event' in the Statement of Principles, Instrument No 49 of 1994, concerning Generalised Anxiety Disorder. How that central legal issue arises can be seen from the facts which are set out in the Tribunal's decision at pars 8 - 11. I do not propose to repeat those facts in this judgment. 3 The Statement of Principles (SoPs), so far as relevant, required the Tribunal to be satisfied that Mr O'Neil had established that he had experienced, in accordance with section (1)(a) of the SoPs: "a stressful event not more than one year before the clinical onset of generalised anxiety disorder." 4 The SoPs defines 'stressful event' as: "an occurrence which evokes feelings of anxiety or stress." 5 The way in which the Tribunal applied the SoPs to the facts is contained in pars 16 ‑ 21 of its decision, as follows: "16. The Tribunal turns to the relevant SoPs and Mr Moore's and Mr Nyhof's submissions. Mr Moore contended that Mr O'Neil had experienced stressful events which evoked feelings of anxiety and stress during service and that the Tribunal should not confuse the issue with definitions in other SoPs, particularly the SoPs concerning post traumatic stress disorder. That is clearly so. 17. The Tribunal also accepts Mr Moore's submission that it should take the applicant as it finds him, particularly with respect to his underlying personality and his subjective responses, but it is an objective test as to whether a stressful event occurred. The Tribunal is reasonably satisfied that no stressful event did occur. There was a breakout of Japanese prisoners of war at Cowra. This was not an occurrence which Mr O'Neil experienced. It occurred nine months prior to his arrival at Cowra. Mr O'Neil was on guard duty over a number of nights. He said that although nothing happened, he was scared. His guard duty was without incident. He never saw a prisoner of war. The Tribunal is satisfied his feelings were all subjective. 18. A similar situation prevailed at Kapooka. There was no occurrence with which Mr O'Neil was involved. He was aware of an earlier training accident when 26 servicemen were killed. Mr O'Neil did not experience that event. His reaction to his undertaking similar training naturally heightened his anxiety as it may have done for many other servicemen and as did the checking of ID tags. He applied to be posted to the War Graves Unit before completing his training at Kapooka. The Japanese had surrendered. 19. Mr Cole described the history he took from Mr O'Neil with respect to what occurred at Heidelberg as follows: '… When the C.O. asked him a question he must have misinterpreted it as he was told to report to the psychiatric ward. He had to wait outside the ward for about an hour wondering what he was doing there and what he had done wrong. When he finally saw the psychiatrist he was questioned about his sexual fantasies before he was sent away and heard no more about it. It had been one of the most distressing experiences of his life sitting outside a ward which was locked and barred with shell shocked soldiers screaming. When his Sergeant heard about it he thought it was a great joke, whereupon he became so angry that he could have killed him …' 20. Mr O'Neil did not mention this incident to Dr Kenny. Nor did he refer to this incident on his claim form. The Tribunal is reasonably satisfied that this incident does not satisfy the meaning of stressful event in the SoPs because it is no more than Mr O'Neil's subjective reaction to what happened and what was required of him. He was angry with his Sergeant and he has not forgotten. 21. The Tribunal, being reasonably satisfied that Mr O'Neil did not experience a stressful event, his generalised anxiety disorder is not related to his service. He does not fit with factor 1(a) of the SoPs concerning generalised anxiety disorder. His other claimed conditions are therefore also not connected with the circumstances of his service and the decision under review will be affirmed." 21. 6 It can be seen that the critical point in the reasoning of the Tribunal is set out in par 17 where the Tribunal embarks on its analysis of the facts. Immediately prior to doing so, it sets out the test which it regards as applicable to the interpretation of the SoPs. It postulates two aspects of the approach to the relevant SoPs: first, an assessment of the subjective response of the applicant; and, second, an objective test as to whether a stressful event occurred. 7 In its analysis of the facts, the Tribunal accepts that Mr O'Neil experienced the subjective feelings about which he gave evidence in relation to each of the three events. Nonetheless, the Tribunal concluded that the mere experience of the subjective event did not bring Mr O'Neil within the definition of a stressful event. That is presumably because the Tribunal regarded the objective part of the test as not having been met. 8 In my view, the construction of the SoPs is clear and simple. The subject matter is the experience connected with a Generalised Anxiety Disorder. This is, obviously, something which is peculiarly personal and dependent upon subjective feelings. Indeed, 'stressful event' is defined as "an occurrence which evokes feelings of anxiety or stress". 9 The task of the Tribunal in applying the relevant SoPs is to hear the evidence generally and determine whether it can be satisfied on the appropriate standard that the applicant actually subjectively felt anxious or stressed. There are a number of elements in this part of the inquiry. 10 It is open, of course, for the Tribunal to reject the evidence of the applicant or others that the alleged feelings were in fact experienced. It is also open to the Tribunal to find that whatever feelings were experienced did not amount to the required anxiety or stress. Finally, it is open to the Tribunal to determine that the circumstances did not amount to an occurrence within the meaning of the definition. Beyond considering these matters, there is no other or further function required to be performed by the Tribunal in applying the SoPs. 11 The Tribunal's reference to an objective test is, I must say, difficult to understand. Mr Hanks, with his usual clarity, attempted to explain the way in which the Tribunal meant that this test was intended to operate. He said that the SoPs mandated a two‑step process. The first step required the Tribunal to ask whether, as an objective matter, the occurrence was of such a character that it could fall within the description of an occurrence which evoked feelings of anxiety or stress. The second step was to ask whether the occurrence did in fact evoke such feelings in the person concerned. 12 Once stated in this way, the difficulty in attributing any meaning to the first suggested step test becomes evident. It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs. 13 In the result, the Tribunal misdirected itself in law, and the matter is remitted to the Tribunal for rehearing according to law. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.