Repatriation Commission v Stoddart

The Statutory Scheme 9 Section 14(1) of the Act renders the Commonwealth liable to pay pension and medical treatment expenses for incapacity where a veteran has become incapacitated from a war-caused disease. The circumstances in which a disease is taken to be war-caused are set out in s 9(1) of the Act. They include where the disease arose out of or was attributable to eligible war service. 10 The standard of proof to be applied by the appellant (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in s 120(1) and (3) of the Act. 11 Section 120(1) provides that, in respect of such a claim, the appellant (and on review the Tribunal) shall determine that the disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Section 120(3) then provides that in applying s 120(1), the appellant (and on review the Tribunal): "… shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person." 12 In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 the High Court of Australia explained how these provisions are to be applied. In substance, the appellant is required to find that a disease is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. It is directed to be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the operational service of the applicant. 13 Section 120A then comes into operation, as the respondent's claims were made after 1 June 1994. Section 120A(3) provides: "For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis." 14 The Commission (and on review the Tribunal) was required also to follow the steps explained by a Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. It was required to determine whether the conditions of which the applicant complained, or either of them, fitted the template described by the relevant SOPs. 15 The hypothesis to which s 120(3) refers will only be satisfied if it fits, or is consistent with, the template in the relevant SOPs. The hypothesis must therefore contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the applicant's operational service. If the hypothesis does contain one or more of these factors, it cannot be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If it does not fit within the template, it will be deemed not to be "reasonable" and the claim will fail because the Commission is directed by s 120(3) in that event to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that either of the diseases was a war-caused disease. The Full Court in Repatriation Commission v Hill [2002] FCAFC 192 at [57] explained that an SOP prescribes the essential content of what is a reasonable hypothesis, for the purposes of s 120(3), capable of connecting the particular kind of injury disease or death with the circumstances of the veteran's particular war service. In order to satisfy ss 120(3) and 120A(3) an hypothesis relied upon by a veteran to support a pension claim must be supported by material pointing to each element that the SOP makes essential for the hypothesis to be reasonable. 16 There is no issue between the parties as to the relevant legal principles. We have extracted the foregoing summary, gratefully, from the reasons for judgment of the learned primary judge.

The Proceedings At First Instance 17 Of the two questions his Honour was called upon to decide, only one is of present relevance. It was whether, in its application of the SOPs in force at the time of its decision, the Tribunal misconstrued or misapplied those SOPs when considering the respondent's claims for pension benefits under the Act in respect of incapacity from PTSD or ALD. This in turn, raised two further questions. First, whether the Tribunal had failed to consider whether the respondent subjectively experienced a "severe stressor". The second was whether the Tribunal had failed to consider whether the events claimed to lead to the "severe stressor" experienced by the respondent may have arisen or occurred from a threat to another person's physical integrity. 18 The next question which arose and which arises in this appeal, is in respect of Factor 5(a) in the 1999 PTSD SOP and Factor 5(b) in the 1998 Alcohol Abuse SOP. Each defines "experiencing a severe stressor" in much the same way. The definition in the 1998 Alcohol Abuse SOP is: "'experiencing a severe stressor' means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement Act applied, events that qualify as severe stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence." 19 The definition in the 1999 PTSD SOP is slightly different in wording, as it refers to "another person's" rather than to "other people's" and it does not have the words "which event or events might evoke intense fear, helplessness or horror". However it is common ground that for present purposes the differences are without significance. 20 The Tribunal dealt with the respondent's claim to have experienced the two stressors in the following terms: "Factor 5(a) of the 1999 PTSD SOP, and Factor 5(b) of the Alochol Abuse SOP, require that the person experience a severe stressor prior to the clinical onset of the conditions. Experiencing a severe stressor is defined as meaning that the person witness, or be confronted with, an event or events that involved actual or threatened death or serious injury, or a threat to the person's or another person's physical integrity. This is an objective test. Even if I was to accept the veracity of the applicant's evidence, the events he has outlined do not objectively satisfy the relevant factors. There was never an actual threat to the Sydney or the Melbourne. I am satisfied, beyond reasonable doubt, that the applicant never experienced, witnessed or was confronted with an event or events that involved actual, or threat of death, or serious injury." 21 Accordingly the Tribunal was not satisfied beyond reasonable doubt that either Factor 5(a) of the 1999 PTSD SOP or Factor 5(b) of the 1998 Alcohol abuse SOP was satisfied. Therefore it was satisfied beyond reasonable doubt that there was not sufficient ground for determining that the respondent's conditions of ALD and PTSD were war-caused. The material before the Tribunal did not raise a reasonable hypothesis connecting either of those conditions with the circumstances of the particular service rendered by the respondent. The Tribunal accordingly affirmed the decisions on review. 22 His Honour held that the Tribunal had fallen into error in requiring a "threat" to be one which, judged objectively and remote from the circumstances and state of knowledge of the person experiencing or witnessing or being confronted with a threat, has a real or actual prospect of actually resulting in death or injury or harm to physical integrity. He expressed the view that the Tribunal imported into the concept of a "threat" in the SOPs, more than was demanded by their wording and by their purpose. It was not apparent, in his Honour's view, why the SOPs should be taken to distinguish between events which actually involve the threat or death or serious injury leading to ALD or PTSD and events which were perceived (and assuming that they were reasonably perceived) as involving the threat of death or serious injury leading to ALD or PTSD. In the present matter, if the respondent were believed about the occasions he referred to, his operational service was in an area where his vessel might come under attack (but did not) and action stations were signalled and he feared for his personal integrity and suffered ALD and PTSD as a result. His Honour referred to s 196B(14)(f), which defines a factor causing or contributing to a disease as related to service rendered by a person if the disease would not have occurred but for the rendering of that service by the person. Subsections 14(a) and (b) provide the alternatives where the diseases resulted from an occurrence that happened while the person was rendering that service or was contributed to in a material degree or was aggravated by that service. His Honour reasoned as follows: "It is consistent with those provisions that the SOPs should be read as meaning that a claimant experiences "a severe stressor" if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person's knowledge and in that person's experience, could reasonably be so perceived. … In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involve threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity." 23 His Honour did not consider it appropriate for the Court to conclude whether the two "occasions" described by the applicant in fact constituted a threat. The Tribunal had made no findings about them and he considered there might be nuances of fact which would impact on the Tribunal's conclusion. The matter was remitted for reconsideration.

The Appeal 24 At the hearing leave was given to the appellant to file an amended Notice of Appeal which in substance raised the four issues pursued by it in its written submissions. These were: (1) whether the Tribunal had required that there "be an actual threat, judged objectively and with full knowledge of all circumstances", as found by the learned primary judge; (2) whether an event or events which are capable of conveying and did convey the risk of death or serious injury or to physical integrity are sufficient to "involve threat of death or serious injury or to physical integrity", in the absence of a communicated manifestation of threat; (3) whether the mere possibility that any particular call to action stations, during operational service may have been in response to an attack or other imminent danger, was capable in law of constituting "an event or events that involve threat of death or serious injury or [to physical integrity]", such as would justify the primary judge in setting aside the decision of the Tribunal and remitting the matter for further consideration or for reconsideration; (4) whether the primary judge erred in concluding that on the evidence it would have been open to the Tribunal to conclude that the two "events" which his Honour was considering were capable of satisfying the definition of "experiencing a severe stressor".

1. "An Objective Threat" 25 The appellant's contention is that on a fair reading of its reasons, the Tribunal did not apply an objective standard so as to require that the "event or events" in question involved an actual threat of death or serious injury. The Tribunal did no more than look for an objective manifestation of the relevant event or events. It found that the objective element of a threat was lacking and in consequence it had no need to address the respondent's subjective perception. It characterised the "two stressors" relied upon as being "normal duties and events that occur whilst a stoker/mechanical engineer is service in the Navy at any time" and that "there was … nothing in the evidence to distinguish any factor of these events as occurring during operation service". The conclusion that "[t]here was never an actual threat" was simply a finding that there never was an event falling within the ordinary meaning of the word "threat". 26 We were taken to passages in the transcript which were said to demonstrate that the Tribunal did recognise that the respondent's own perception of the "events" in issue had a bearing on the question whether he experienced a "severe stressor". 27 The respondent's submission is that the Tribunal simply applied an objective and incorrect test when construing the term "threat". What the appellant was now attempting was to recast the Tribunal's reasoning to make it conform to the test which was affirmed by the Full Court of this Court in Woodward v Repatriation Commission (2003) 200 ALR 332. 28 In our view, what the appellant is seeking is that we decide this appeal on a basis not relied upon by the Tribunal and by applying a test not acknowledged by the Tribunal. 29 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, 175. 30 The primary judge was correct in identifying this both as the course taken by the Tribunal and as the source of its error: see also Woodward's case, at para 134. Subsequent to his Honour's decision, the Full Court in Woodward's case (at para 137ff) adopted and followed his explanation of the meaning of "threat" as used in the SOP definitions. The definitions did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances. To adopt the Full Court's paraphrase (at para 139): "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." 31 The Tribunal misdirected itself. In consequence it did not address whether the "threat" perceived by the respondent was in the circumstances capable of satisfying the requirements of the definition, notwithstanding there was no actual threat as such. We do not consider that the Tribunal's reasons can properly be reinterpreted so as to suggest that it did. Its concern was with no more than whether there was an actual threat. On its reasoning, an unloaded firearm pointed at a person, who did not know it was unloaded, could never be a threat. Human experience shows that many effective threats have been those which were not or could not be carried out.
2. "A Risk Of Death Or Serious Injury" 32 The primary judge's explanation of a "threat" extended to an event or events which: "judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (ie are subjectively experienced) the risk of death or serious injury or to physical integrity." Emphasis added. Further, his Honour accepted that the meaning conveyed by "threat" in its SOP contexts was "an indication of probable evil to come; something that gives indication of causing evil". 33 The substance of the second ground of appeal is that, in so referring to a risk of death or serious injury, the primary judge reformulated the test contained in the SOP (i) by lowering the threshold from that which a "threat" would require; and (ii) by refocussing the definition away from the alleged requirement that there be a manifestation of intended or likely harm. 34 We do not consider that either of the contentions can give comfort to the appellant. The description, "a risk of death", can be used appropriately to describe a clear and present danger of death and a mere possibility of death. Ordinarily, it is the context in which such a description is used (with or without an accompanying adjective: cf "risk" vs "mere risk" in Repatriation Commission v Thompson (1998) 44 FCR 20 at 24) that will indicate the gravity of the risk that is being incurred. In our view, such is the case with the primary judge's usage. 35 Given the context in which the word "risk" was used - ie in a protracted discussion of what constitutes a "severe stressor" - it is apparent that his Honour intended no dilution of what the term "threat" conveyed in the definition of each SOP and the gravity of the perceived risk was to be understood accordingly. To suggest that he did otherwise is to divorce the language used from its context. It is notable that the Full Court in Woodward (at para 139) appeared to have no difficulty with his Honour's use of the term "risk". 36 Similarly, we do not consider that the primary judge impermissibly refocussed the definition of threat. The dictionary definition he adopted - ie "an indication of probable evil to come: something that gives indication of causing evil or harm" - is the proper and appropriate one in the setting of the SOPs for the reasons given by his Honour: Reasons at para 52.
3. "Routine Events" 37 The burden of this ground of appeal is that the events relied upon by the respondent were found by the Tribunal to be "all normal duties and events that occur whilst a stoker/mechanical engineer is serving in the Navy at any time. There was … nothing in the evidence to distinguish any factor of these events as occurring during operational service". As such, it is contended these events could not satisfy the SOP definitions as they had no relevant character that differentiated them from ordinary events. 38 The vice in this contention is that it fails to take account of the possibility that events that are objectively "neutral in character" may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time. 39 The ground of appeal seeks indirectly to reinstate the objective test of threat rejected by the Full Court in Woodward.
4. "The Evidence Of "Experiencing A Severe Stressor"" 40 The contention here is that, on the evidence, it cannot be said that the respondent experienced, witnessed, or was confronted with an event or events that involved threat of the relevant kind. 41 All we need say of this, having had regard to the evidence to which we were taken by both parties, is that it is tantamount to an attack on the reasonableness of the respondent's perception. This, as we have indicated, was not addressed and was not the subject of findings by the Tribunal.
5. Conclusion 42 We have rejected all of the grounds of appeal. Nonetheless the appellant contends that the appeal should be dismissed as it would be futile to have the respondent's claims redetermined by the Tribunal. On the evidence, it is said, the result could only go one way and that would be adversely to the respondent. 43 It is uncontroversial that it is open to the Court hearing an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 to dismiss the appeal if, having found an error of law, it nonetheless considers (i) the Tribunal's decision was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562; Harris v Repatriation Commission (2000) 31 AAR 270; or (ii) the same result would be inevitable on the remitter: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214. But where "it is possible" for reasons of change of mind, reappraisal of the evidence, or otherwise that a different result could ensue, the Court should be slow to exercise its discretion to shut an applicant out of relief on the basis of futility: Santa Sabina College v Minister for Education (1995) 58 ALR 527 at 540; Arnott v Repatriation Commission (2001) 106 FCR 83; S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561 at 567-568. 44 The present is not a case in which we are satisfied that the possibility of a different result would not be there on a remitter. The Tribunal did not view the material before it through the correct legal prism. It did not make findings related to the respondent's perception of threat. Whether or not the decision at which the Tribunal arrives on the remitter is the same, we are not satisfied that the factual material to which we have been taken is itself so decisive that the Tribunal correctly applying the definition could only come to one conclusion. 45 We would dismiss the appeal with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg.

Dated: 18 December 2003 Counsel for the Applicant: N J Williams SC with S J Maharaj Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: S W Tilmouth QC with S D Ower Solicitor for the Respondent: Tindall Gask Bentley

Date of Hearing: 17 November 2003 Date of Judgment: 19 December 2003