Repatriation Commission v Warren [2007] FCA 866 | Case summary

DETERMINATION OF THE APPEAL 22 The question raised by the VEA, to which the appeal is directed, is not that of causation. The applicant's reference in submissions to the application of the SoP, in the context of ss 120 and 120A, is likely to confuse the true issue. The appeal concerns the threshold question, arising from ss 13 and 9, namely whether the respondent in fact suffers from the injury or disease upon which his claim to a pension is based. The cases confirm that s 120(1) assumes the existence of the relevant injury or disease; that the question whether it is suffered by the veteran is separate from the following questions as to causation; and that it is to be determined by the decision-maker to its reasonable satisfaction, as s 120(4) requires: see Fogarty v Repatriation Commission [2003] FCAFC 136 per Kenny J at [35] and following; Benjamin v Repatriation Commission (2001) 70 ALD 622; Repatriation Commission v Cooke (1998) 90 FCR 307 at 310-311; Repatriation Commission v Budworth (2001) 116 FCR 200; Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 700-702. Some of these cases have been concerned with the decision-maker applying the wrong standard, or making its factual determination as to the character or existence of the disease when applying the hypothesis seen to arise to the 'template' of the SoP. Repatriation Commission v Hill (2002) FCAFC 192; 69 ALD 581 furnishes an example of the latter error. The Court observed (at [61]) that reference to the elements of PTSD would have been relevant if there was a dispute as to whether the veteran was suffering from the disorder, but they were not relevant at stage 3 of the Deledio 83 FCR 82 questions. 23 The question that the appeal raises is whether it is necessary that the Tribunal make its findings, as to the existence of the disease claimed, expressly and in detail, by reference to the criteria in the SoP. The applicant relies upon cases which hold that it is necessary for the decision-maker to have regard to the definition of injury or disease in the applicable SoP: see Repatriation Commission v Codd [2005] FCA 888 at [48] and Gosewinckel 59 ALD at [55]. Those cases however also make plain that it may be expected that the Tribunal will act upon medical opinion as to diagnosis. The point made by Weinberg J in Gosewinckel 59 ALD at [55], is that the Tribunal is not in a position to accept a doctor's opinion as to the existence of a disorder without knowledge of the criteria essential to its diagnosis. 24 The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran's case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the Tribunal, presumably upon the basis of a clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be 'those specified in DSM-IV, and are as follows'. The criteria are intended as part of the definition for the purpose of the application of the SoP. 25 The anterior, or threshold, question for the Tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the Tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that Manual and the criteria provided by it. 26 The applicant's case must therefore be that it is to be inferred, as a matter of statutory construction, that the SoP diagnostic criteria are to be applied to a finding with respect to the anterior statutory question. Their application may be implied if the statute was intended to operate in a particular way. In that regard there is a clear connexion between the condition to be found and the criteria, or at least a practical consequence if they do not correspond. Although the anterior question is separate from that as to whether the SoP applies, if the condition found is characterised by criteria which differ from those in the SoP, the claim will fail because the SoP will not apply. The possibility of a reasonable hypothesis arising will be removed. 27 It may be inferred that the SoP were written upon an assumption that if a veteran was found to be suffering from a condition classified by DSM-IV, a diagnosis in accordance with that Manual would have been made. It was intended that the SoP apply where such a diagnosis was made. This assumption, of correspondence, might suggest the application of the SoP criteria in relation to the finding of the existence of the condition. There is however one difficulty with that approach. It is DSM-IV as a whole which will inform a clinical diagnosis, upon which a finding will be based. The Manual itself explains that there is more to a diagnosis than the application of the criteria in a 'cookbook' fashion. A person having symptoms which fall short of meeting the stated criteria may nevertheless be diagnosed as suffering from the condition. DSM-IV refers to the need to exercise clinical judgment, which I take to include the application of experience. In some cases the SoP criteria may not therefore be met. 28 It cannot be inferred that the SoP were drawn on the basis of some misunderstanding as to the application of DSM-IV. They were drawn by reference to it. It could not therefore have been intended that the strict application of the criteria summarised in the SoP definition was to be a requirement of, or a substitute for, a proper clinical diagnosis. The threshold question in each case will be whether the diagnosis was one properly made, having regard to DSM-IV. Because clinical judgment is involved, differences of opinion may arise. They will need to be resolved by the Tribunal on the materials before it. 29 Once the Tribunal has made its finding the VEA does not require the diagnosis to be assessed against the SoP definition, as if the latter were a check list. The purpose of the definition must be borne in mind. It is to identify which condition or disorder in DSM-IV it refers to. If the Tribunal or other decision-maker has accepted a diagnosis of a DSM-IV classified disorder, the SoP will apply to it. It may have been sufficient to refer to the description of the disorder, but the SoP have gone further and summarised the relevant criteria. This may have been intended as a useful guide for decision-makers. That is not important for present purposes. There is nothing in the operation of the relevant provisions of the VEA which requires the SoP definition to be utilised by the decision-maker in determining the existence and nature of the DSM-IV classified condition. The possibility of a lack of correspondence should not arise. 30 The only question in the present case was whether there was evidence upon which the Tribunal could reasonably be satisfied that the respondent suffered from PTSD and alcohol dependence. The evidence of Dr Rogers was not only that of a diagnosis of each condition, but also that each diagnosis was made in accordance with DSM-IV. Those assertions were not challenged by the applicant. No aspect of his diagnoses was identified as outside the purview of DSM-IV. 31 In relation to the PTSD the Tribunal also had before it the report of Dr Mulholland, in which he expressed the opinion that the respondent's symptoms did not warrant a conclusion that he suffered from a psychiatric disorder. The doctor conceded that the length of time over which the respondent had been receiving psychiatric treatment and the observation of an independent lay witness, as to changes in the respondent's personality, might suggest a psychiatric disorder. The respondent had been seeing Dr Rogers for some four years by the time of the hearing. Moreover Dr Mulholland expressed concern that the respondent may have been understating his problems. 32 The Tribunal was clearly prepared to act upon Dr Rogers' evidence and said as much. It would have been entitled to do so, regardless of the concession made by the applicant's legal representative that the diagnosis was one properly made and capable of acceptance by the Tribunal. It is therefore strictly unnecessary to deal with the applicant's submissions with respect to the concessions, but it seems to me necessary to do so, since it now involves the conduct of the applicant on an appeal before this Court. 33 The applicant embarked upon a surprising course on the appeal. It argued that the concession was not properly made, or that it should not be held to it. Reference was made in submissions to the concession being something of a 'surrender'. It is correct that the concession occurred after discussion between the Tribunal and the applicant's legal representative. Clearly enough he considered that the Tribunal was not impressed with the applicant's foreshadowed contention that Dr Rogers' diagnosis should not be accepted, although the applicant had not directly challenged it. He advised the Tribunal that he would no longer press the contention and would focus the applicant's argument upon the application of the Deledio 83 FCR 82 steps, which is to say upon the assumption that the Tribunal accepted the diagnosis of PTSD. The Tribunal enquired whether the applicant's legal representative wished to take that position. It appears that it was concerned that he may have felt some pressure to do so, arising from the discussion. It seems to me that the Tribunal may have been overly polite. There is no indication in the transcript that the legal representative was at all pressured. This is confirmed by what followed. The question asked by the Tribunal, whether the legal representative accepted the diagnosis of PTSD, was answered directly and in the affirmative. The legal representative advised that he did not feel under any pressure, but recognised that a finding contrary to the applicant was inevitable. In any event he concluded by saying that he was 'happy to put the Commission's case on whether or not the condition of PTSD is related to service through the Statement of Principles having regard to Deledio and the other cases, and I also put our case on the basis that there is no diagnosis present of an alcohol disorder'. At the Tribunal's request he confirmed that the issues arising were causation, with respect to the PTSD, and that there was no diagnosis of alcohol abuse. 34 As a general rule it is only in the clearest case, and for the most cogent of reasons, that a party who has conceded a matter is able to make the validity of what was conceded the basis for overturning a decision: Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 at 241. If there was some error on the part of the Tribunal in acting upon the concession, or something approaching injustice to the applicant in holding it to the concession, the Court might exercise its discretion to permit it to argue to the contrary of it and require a fresh hearing upon the matter: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194-195; Nation v Repatriation Commission [No 2] (1993) 18 AAR 273 at 293. The concession on the part of the applicant's legal representative was perfectly clear. The fact that he considered that the Tribunal was likely to accept Dr Rogers' diagnosis is no basis for permitting the applicant to resile from the concession. It amounted to an exercise of professional judgment, as to whether to pursue the issue at all. It could hardly be said to amount to an injustice to hold it bound to it. The only injustice it would work would be to the respondent. 35 The applicant submitted that the Tribunal was not entitled to act upon the concession, as it had a statutory duty to decide the question, whether the respondent suffered from the condition, for itself and referred to Perpetual Trustee Company (Canberra) Limited v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 at 419. In that case however the Tribunal had decided a case on the basis of admitted facts which provided only an artificial and inadequate basis. The Court did not hold that a Tribunal could not accept proper and relevant admissions of fact. In the present case there was nothing to prevent the Tribunal accepting the admission, which was clear in its terms and was made in the background of evidence of a diagnosis of PTSD. It was in any event intending to act upon that evidence. 36 I turn then to the applicant's argument concerning the Tribunal's finding that the respondent suffered from alcohol dependency. The applicant's general submission, that the doctors and the Tribunal were required to refer in detail to the criteria in the SoP, (or DSM-IV), in arriving at their diagnosis or finding respectively, is dealt with by the preceding reasons. On the applicant's alternative approach, and in an endeavour to raise a question of law, it was contended that there was no evidence to permit such a finding. A mere insufficiency of evidence would not suffice. It is necessary in cases such as this to be precise as to the nature and quality of the error attributed to a decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [5]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 at [40]. From that point it may be possible to identify the legal principle, or statutory provision, that attracts the suggested consequence: S20/2002 198 ALR at [5]. 37 There was evidence which supported the finding made by the Tribunal, that of Drs Gillman and Rogers. They had both diagnosed alcohol dependence, Dr Gillman as at 1997 and Dr Rogers in 2002 and 2004. Dr Mulholland did not consider that a diagnosis was open, on the account of the respondent that his heavy consumption of alcohol had been over a ten year period which ended in 1981 and that, by the time Dr Mulholland saw him in September 2005, the respondent had control of the problem, having reduced his consumption to only 150 ml of port wine each day and somewhat more on one or more occasions a week. 38 The applicant sought, in the first place, to overcome the two doctors' diagnosis by elevating a statement made by the respondent to Dr Gillman, that he did not consider that he had such a problem, to a denial of his case. It is not difficult to understand why the Tribunal did not expressly deal with the contention. It was clearly entitled to disregard it. Dr Gillman had done so, whilst expressing the view that the respondent had little insight into his condition. 39 I infer from the applicant's submissions from this point, that it is contended that the only evidence that the Tribunal could consider was that of the respondent himself, in his account to Dr Mulholland, and the doctor's opinion thereon. This approach assumes that the account and opinion must be accepted and that the other doctors' diagnosis are no longer reliable, because there was a significant change in the respondent's habits. The applicant submitted that the Tribunal was not entitled to assume a continuation of heavy drinking and the condition of alcohol dependence by reference to the respondent's level of consumption as reported to Dr Mulholland. The Tribunal was not entitled to rely upon the fact that the respondent drank every day, even if in the lower quantities reported to Dr Mulholland, as substantiating a diagnosis. The criteria referred to a constellation of symptoms and the Tribunal's reasons went no way towards identifying them, it was submitted. The submission misunderstands the Tribunal's reasons. It was not making a diagnosis itself. At issue was whether the diagnoses of alcohol dependence, particularly that of Dr Rogers made a year before and by reference to DSM-IV, could be said to be no longer relevant because they were based upon a different level of alcohol consumption. It was concerned with the question, which had been directed to Dr Mulholland, whether it could be said that the respondent was in remission, given that doctor's evidence that the underlying tendency to heavy drinking was likely to remain. 40 It is scarcely necessary to point to the authorities which remind that the decisions of tribunals are not to be read too closely or literally. A number of cases have recognised that a tribunal may be taken to have considered the whole of the evidence, although its conclusions are stated shortly: see for example Ex parte s20/2002 198 ALR at [14] and Gosewinckel 59 ALD at [59]. In the present case the Tribunal may have identified one factor which influenced it towards a conclusion that the respondent's condition remained that which Drs Gillman and Rogers had diagnosed. It would have been obvious to the Tribunal that the period of the respondent's heavy drinking reported to Dr Mulholland was inconsistent with the histories reported to those two doctors and upon which their diagnosis had been made. In his 2004 report Dr Rogers confirmed his earlier diagnosis, despite the respondent having reduced his consumption. The Tribunal's reasons contain a reference to the possibility that the respondent's condition might have been in remission at the time when he saw Dr Mulholland, a matter which had been raised with the doctor in the course of the hearing. The doctor said that was a difficult question. Importantly, the doctor had not made a diagnosis of an existing condition because the respondent gave him a history of his control of drinking over a long period of time, since the early 1980s. He said that if there was a more recent history of heavy drinking, a diagnosis of a condition in remission was possible. The doctor was there answering a question relating to alcohol abuse, but he referred generally, in his answer, to conditions relating to alcohol where the sufferer may readily relapse. His views would appear to be of general application. 41 The Tribunal's reasons disclose that it was not persuaded from the diagnosis of alcohol dependence made by the two doctors. Such a conclusion would have required it to accept the respondent's current drinking was as reported to Dr Mulholland when there were obvious inconsistencies in the history he gave about his drinking. It accepted only as a possibility that the respondent could be in remission. Even if it had accepted that to be the case, the earlier diagnoses would remain unaffected. The respondent would still suffer from the condition. It may reasonably be inferred that it did not accept that any change in the respondent's behaviour was such as to have been likely to remove the basis for the diagnoses. 42 The applicant's last point concerns the Tribunal's finding that factor 5(a) of the SoP, relating to alcohol dependence, had been satisfied because of its findings with regard to the respondent's PTSD. The respondent submits that the Tribunal's reasons (at [18] above) may have two meanings: that he was suffering from PTSD at the time of clinical onset of his alcohol dependence or that he experienced the same severe stressor as that attributed to the PTSD. The latter finding may well have been open, but the Tribunal's reasons make plain that it was factor 5(a) to which its finding was addressed. There was evidence which supported the finding, including that of Dr Rogers who regarded the conditions as related and the heavy consumption of alcohol to have followed upon the latter of the incidents in Vietnam. The applicant had itself expressly conceded in its Statement of Issues that if the Tribunal finds that PTSD and alcohol dependence are both present, it would be to the Tribunal to find that fact 5(a) of SoP No 3 of 1999 am No 76 of 1998 is satisfied'.

Repatriation Commission v Warren

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (11)

Cited By (4)