Repatriation Commission v Codd

[2005] FCA 888

Federal Court of Australia|2005-06-30|Before: Ryan J

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Court

Federal Court of Australia

Decision date

2005-06-30

Before

Ryan J

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Original judgment source is linked above.

Judgment (81 paragraphs)

[1]

Introduction 1 This is an application by way of appeal from a decision of the Veterans' Appeals Tribunal ("the Tribunal") made on 20 August 2004. By that decision, the Tribunal set aside the decision of the applicant Repatriation Commission that the death of the late Ronald Kevin Codd ("the veteran") was not war-caused and substituted a decision, that the death of the veteran was war-caused.

[2]

Background facts 2 The veteran had served in the Australian Army from 5 October 1942 until 9 August 1946. Between 2 January 1945 and February 1945 he served with 2/4 Dental Unit. He was then diagnosed with cognitive nystagmus and returned to Australia in February 1945. His service had been with the 2/1st Field Ambulance Service to which was attached a Dental Unit. Among the veteran's war-caused disabilities were infected tonsils, chronic eczema and mild labile hypertension. 3 On 7 December 1968 the veteran was killed when a timber truck which he was driving was struck by a train at a level crossing at Benalla in country Victoria. At a subsequent coroner's inquest there was evidence that the veteran's view of the approaching train had been impaired or blocked by the rising sun. There was evidence to the effect that the concentration of alcohol in the veteran's blood at the time of the collision was equivalent to that which would have been brought about by the consumption of one seven-ounce glass of beer. There was also evidence before the Tribunal from the respondent who had met the veteran in 1950 and married him on 16 August 1952. That evidence included these passages; 'I understand from talking to Ron's family that he was a non-drinker before the war. I understand that he commenced drinking during his service. It is my recollection that he was a nervy man when I met him. I recall that from the beginning of our marriage he was a restless sleeper and suffered frequent nightmares. He would scream in his sleep words such as "don't, don't" and "here it comes, here it comes". He was a man who was easily upset and sudden noises and the loud noise of children irritated him.

[11]

4 The hypotheses advanced before the Tribunal on behalf of the respondent, who is the veteran's widow, were; · Anxiety - the service of the deceased had caused the veteran to develop an anxiety condition which contributed to impairment of concentration, lack of sleep, nightmares and restlessness all of which contributed to the collision. · Alcohol consumption - as a consequence of his service, the veteran consumed alcohol excessively which in turn led to an impairment of concentration contributing to the collision. · Aggravation of nystagmus - the deceased suffered from nystagmus and jerky movements of his head which were aggravated by anxiety, and the nystagmus and head jerking contributed to the fatal collision. · The combination of anxiety, alcohol and nystagmus - as a result of service, the veteran had commenced to consume alcohol excessively by way of self medicating; the nystagmus and jerking of his head had been aggravated by anxiety; and the combined effects of alcohol consumption, aggravation of nystagmus and head jerking had resulted in impaired concentration which contributed to the fatal collision. · Hypertension - hypertension (accepted as war-caused) caused the deceased to suffer from light-headedness, and these features, together with impairment of concentration (said to arise out of being light headed) contributed to the fatal collision. 5 There were various expressions of expert medical opinion before the Tribunal. Of the experts who tended to support the contention of the applicant, Professor Harper, a cardiologist, stated that reported episodes of the veteran's dizziness would have been due to nystagmus and not to hypertension. Professor Harper also opined that; · The veteran's level of blood alcohol would not have aggravated his blood pressure and caused impairment of concentration. · "Impairments of concentration and senses are rarely due to transient rises in blood pressure, but obviously alcohol excess in itself can cause impairment of concentration and senses as can acute anxiety". · there was no evidence that the veteran's blood pressure was a cause or contributory cause of his fatal accident. 6 The first of two specialist psychiatrists whose evidence was before the Tribunal was Dr Holwill, who expressed opinions that; · The veteran had a history of moderate to severe substance abuse (alcohol) attributable to his Army service. · The respondent had described symptoms suggestive of post-traumatic stress disorder ("PTSD") or generalised anxiety disorder ("GAD") in the veteran. 7 However, the second specialist psychiatrist, Dr Whitaker, opined that; · "There were no grounds for excluding aggravation of his emotional disorder by war stress". · "The mere fact that there [was] no reference" in the veteran's file regarding his sleep, or the content of his dreams, or the existence or otherwise of flashbacks "indicates the deficiency of the record". · The veteran's symptoms (as described by the Respondent) were "sufficient to base a diagnosis of war aggravated anxiety reaction". · "There was a manifest anxiety state and labile hypertension at the time of the veteran's discharge; real symptoms of that anxiety state which commenced on service persisted for many years after the war; self-medication with alcohol was evident to the end of the veteran's life; and the combined effects of alcohol intake, nystagmus and head jerking while driving into the sun would have been likely to substantially impair concentration and attention thus contributing to the veteran's failure to stop at the level crossing". 8 The veteran had served in New Guinea from January 1945 until the Japanese surrender in August 1945 and, according to the respondent, had been involved in "stretcher bearing duties". While not admitting that assertion, the applicant had conceded that "the veteran may have experienced a severe psychological stressor" while serving in New Guinea between January and August 1945. 9 The Tribunal found on the balance of probabilities that the veteran had suffered GAD within the meaning of Statement of Principle ("SoP") 1 of 2000.

[62]

The Tribunal's decision 21 The Tribunal summarised, at [29] of its reasons for decision, the evidence which it regarded as showing that the veteran had manifested the symptoms of GAD. It there said; 'More specifically it was alleged that the material points to the veteran suffering from an anxiety disorder by reason of his service as a stretcher bearer, upon the observations of Mrs Codd of her husband being restless and "nervy", suffering from frequent nightmares, being easily upset and irritated by noise. Additionally it was noted that there was evidence of members of the deceased's family observing him to be "changed" upon his discharge from service.' 22 In rehearsing the submission advanced on behalf of the veteran's widow which relied on that evidence, the Tribunal observed, at [33] of its reasons; 'In concluding this part of the submissions upon the anxiety hypothesis it was submitted that the Tribunal could not be satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the anxiety condition contributed to death.' 23 The Tribunal also relied upon the reports of the two psychiatrists, Drs Holwill and Whitaker in concluding that veteran suffered from GAD at the time of his death. At [64]-[65] of its reasons, the Tribunal stated; '64 Dr Holwill in his report of 22 April 2002 (T-documents p107) decided that upon the history given to him by Mrs Codd, the symptoms of the deceased were suggestive of PTSD or generalised anxiety disorder. Dr Whitaker in his report of 21 August 1990 made a diagnosis, again on the history given to him by Mrs Codd, of "aggravated anxiety reaction" (T-documents p79). Doctors Holwill and Whitaker are both practising psychiatrists. In a Statement of Facts and Contentions lodged prior to the commencement of the hearing the respondent (paragraph 37) "accepts that there is material pointing to the applicant having experienced "a severe psychosocial stressor" . . . whilst acting as a stretcher bearer in New Guinea". 65 In my view the concession made by the respondent is properly and fairly made. I am satisfied also that Doctors Whitaker and Holwill have arrived at a diagnosis consistent with the information provided to them from Mrs Codd and from a number of documents that have been lodged in these proceedings. This finding is also permissible having regard to the evidence of Mrs Codd during the hearing of this review. I am satisfied and find as a fact that upon the balance of probabilities, the applicant did suffer an anxiety condition, which was present at the date of his death may be properly described as "generalised anxiety disorder", thereby attracting consideration of SoP Instrument No. 1 of 2000.' (Emphasis added). 24 The Tribunal then reproduced at [66] of its reasons an extensive extract from Repatriation Commission v Deledio (1998) 83 FCR 82 which, it noted, ordained the method to be followed by decision-makers required to apply SoPs. It then concluded that the material before it, on examination, raised a hypothesis connecting the claimed illness, GAD, with the veteran's war service and that "Stage 2 is obviously satisfied because there is an SoP "in force" namely Instrument No.1 of 2000 entitled "General Anxiety Disorder"; (see [68] of the Tribunal's reasons). 25 The Tribunal next proceeded to consider whether the hypothesis advanced was reasonable. Its observations under that heading in relation to GAD were; '69 The hypothesis will be reasonable if it is consistent with or fits the template of the SoP. Findings of fact are not required at this stage but the hypothesis as raised must contain at least one of the factors within the SoP which exists as a minimum and which is related to the service of the deceased.

[76]

Did the Tribunal ask the right question? 34 Ms Macdonnell of Counsel for the applicant submitted that the Tribunal had erred in determining that the material before it was capable of supporting a finding that the veteran was suffering from GAD at the time of his death. 35 It was submitted that there is no diagnosis in any of the medical reports that the veteran suffered from GAD. The highest that the medical evidence goes is the opinion of Dr Holwill that the symptoms described by the veteran's wife were "suggestive of" PTSD or GAD and the fact that Dr Whitaker made a diagnosis of "aggravated anxiety reaction". 36 The applicant also submitted that the Tribunal had erred by accepting medical evidence of GAD without having regard to the description of that disorder as set out in the SoP (or in DSM-IV); (see Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690 per Weinberg J at [55]). In Gosewinkel, Weinberg J found that the Tribunal had not erred in omitting to deal with each of the diagnostic criteria because his Honour considered that the Tribunal had regard to the prescribed criteria. 37 Ms Macdonnell distinguished the decision of Weinberg J in Gosewinckel on the basis that his Honour there indicated that it was implicit in the evidence that the veteran met each of the requisite criteria for GAD whereas here, it was submitted, neither medical witness had made any reference whatsoever to the symptoms of GAD as set out in the SoP. Moreover, Ms Macdonnell contended, there was no evidence before the Tribunal from which it could find on the balance of probabilities that the minimum number of the diagnostic features or symptoms required by the SoP had been manifested by the veteran. 38 In support of this contention, Ms Macdonnell submitted that the medical evidence before the Tribunal was equally capable, for example, of supporting a diagnosis that the veteran suffered from PTSD for which a different SoP prescribes a quite different set of symptoms. It was submitted that the only common symptoms in the SoP for GAD and the SoP for PTSD are "irritability", "difficulty falling or staying asleep" and "difficulty concentrating". Further, the symptoms described by Dr Holwill included only "irritability" and evidence of "nightmares" which could possibly have created difficulty falling or staying asleep or restless unsatisfying sleep which may equally have been indicative of PTSD. 39 In relation to the reliance placed upon the respondent's evidence at the hearing, the applicant submitted that the respondent had not given any evidence which went to the features of GAD. For example, the respondent recounted to Dr Holwill that the veteran was always "nervy" by which Dr Holwill said "she meant tense, with a prominent startle response" which is a possible symptom of PTSD but not GAD. The respondent also gave evidence to the effect that the veteran had not been a drinker before the war but that on his return he drank daily and it was her belief that "He wanted to try and cover things up, forget things". 40 Ms Macdonnell also submitted that, although drinking or a desire to forget or avoid may be relevant to PTSD, drinking or wanting to forget are not features of GAD. The features of GAD are characterised as excessive anxiety or worry (apprehensive expectation). 41 The applicant also submitted that the Tribunal had erred by basing its finding that the veteran was suffering from GAD at the time of his death on the Commission's acceptance that there was material "which pointed to the veteran having experienced a 'severe psychosocial stressor' … whilst acting as a stretcher bearer in New Guinea"; (see [64] and [65] of the Tribunal's reasons at [23] above). Ms Macdonnell for the applicant submitted that, in the case of GAD, a severe psychosocial stressor is not a feature or symptom of the condition which is relevant to diagnosis. It was noted, in passing, that the primary feature of the condition PTSD is exposure to, or experience of, a traumatic event of a certain kind. 42 The respondent submitted that it was open to the Tribunal to find as it did, in reliance on the evidence of Drs Holwill and Whitaker, that the veteran suffered from GAD; (see [64]-[65] of the Tribunal's reasons reproduced above at [23]). 43 It was contended by the respondent that the Tribunal was not obliged to "tick off" every feature of "generalised anxiety disorder" specified in cl 8 of the relevant SoP. The respondent submitted that here, as in Gosewinkel, it was implicit in the evidence before the Tribunal that the veteran met each of the requisite criteria for GAD. 44 Alternatively, the respondent submitted that it was sufficient for the focus of the Tribunal to be on whether factor 5(a)(ii) of the SoP existed as a minimum. The respondent submitted that the Tribunal had correctly determined that there was evidence that the veteran had experienced a severe psychosocial stressor within the two years immediately before the clinical onset of the anxiety disorder (see [70] of the Tribunal's reasons quoted at [25] above). 45 In the further alternative, it was submitted that it was sufficient for the Tribunal to pay regard, as it did, to the matters set out in [64]-[65] of the Tribunal's reasons reproduced at [23] above. The respondent contended that as long as there is in the material some basis of support for the Tribunal's findings, no error of law can be imputed to the Tribunal; see and compare Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Nor, it was submitted, is there any error of law in simply making a wrong finding of fact; Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.

[77]

Resolution 46 The Tribunal concluded to its "reasonable satisfaction" on the basis of the evidence of Drs Holwill and Whitaker that a hypothesis had been pointed to in relation to the veteran that he had a collection of symptoms corresponding to GAD. Counsel for the applicant contended that the evidence in those reports is incapable as a matter of law of supporting the Tribunal's findings. I accept that the Tribunal made an error of law in concluding that the veteran suffered from GAD because I do not consider that an inference to that effect was reasonably open to the Tribunal on the material before it; see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358. Nor was it implicit in the evidence, as it was held to be in Gosewinckel (supra), that the veteran had manifested at least the minimum collection of symptoms constituting GAD. 47 Without attempting to exhaust the collection of symptoms of GAD of which there was no evidence, it is sufficient to indicate that the material did not afford a basis for concluding that, at the time of his death, the veteran was experiencing excessive anxiety and worry in the sense of apprehensive expectation as required by par A of cl 8 of the SoP. Mrs Codd's evidence tended rather to suggest anxiety about past events which led the veteran to drink to excess because "he wanted to forget things" or because he was "ashamed". The evidence was sufficient to indicate at least symptoms (1), (4) and (6) of those enumerated in par C of cl 8 of the SoP but it did not suggest, as required by that paragraph that those symptoms were associated with the anxiety and worry (about a future event) mandated by par A of that clause. Nor did the evidence indicate that at least some of the three symptoms which I have just identified were present for more days than not during the six months preceding the veteran's death. As well as failure to indicate that the veteran suffered from anxiety or worry of the requisite kind, the evidence was not capable of excluding his symptoms from having occurred solely during PTSD as required by par D of cl 8 of the SoP. 48 It may be that the Tribunal was led into the error of law which I have imputed to it by its expression at [59] of its reasons that; 'The issue of diagnosis is not to be determined pursuant to the SoP (refer Benjamin v Repatriation Commission).' However, as the passage from Benjamin reproduced at [28] above makes clear, the Tribunal was required to decide to its reasonable satisfaction that a veteran was suffering from a collection of symptoms constituting a particular injury or disease. In this case, GAD was one of several injuries or diseases postulated on behalf of the veteran's widow. Once a postulation of that kind occurs, it is necessary for the decision-maker to have regard to the definition of the injury or disease in the applicable SoP. That is not to say that the evidence, whether of medical experts or lay observers, has to use the nomenclature which is to be found in the SoP, or, even, that it has to advert to a particular SoP among several conceivably available. Such usage, mirroring the language of the SoP is particularly not to be expected in medical reports like that of Dr Whitaker in the present case which antedated by ten years the promulgation of the SoP for GAD. As another Full Court observed in Budworth (supra) at 207 [19]; '… the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).' 49 However, even if I be wrong in holding that there was no sufficient evidence to support a finding that the veteran suffered from GAD, the Tribunal also failed to consider whether the hypothesis raised by the applicant was reasonable, that is, whether it fitted with the 'template' to be found in the SoP. In particular, it is impossible to discern from the evidence relied on by the Tribunal how one of the factors set out in cl 5 of the SoP must have been related to any relevant service rendered by the veteran. Because of the concession on behalf of the applicant that the veteran may have suffered a severe psychological stressor between January and August 1945, the Tribunal appears to have assumed that factor (a)(ii) of cl 5 of the SoP existed. However, that factor required the clinical onset of anxiety disorder not later than two years after the veteran experienced the severe psychological stressor. In this case that must have been not later than August 1947. The absence of any evidence at all of relevant symptoms before 1950 signifies a separate and additional error of law by the Tribunal.

Repatriation Commission v Codd

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