Summers v Repatriation Commission

RELEVANT STATUTORY PROVISIONS 5 Section 13(1) of the Act obliges the Commonwealth to pay a pension to a veteran incapacitated by war-caused injury or disease. Section 9(1) of the Act, outlines the circumstances in which an injury or disease is to be regarded as war-caused. The circumstance which is relevant to the present appeal is set out in s 9(1)(a) as follows: … 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: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; 6 Whether a veteran suffers from an injury or disease, and the diagnosis of the injury or disease, is determined by applying the standard of proof set out in s 120(4) of the Act, namely, to the reasonable satisfaction of the decision-maker. Where the claim relates to operational service, as in this case, the standard of proof to be applied to the question of whether an injury or disease is war-caused is prescribed by s 120(1) and (3) of the Act. Section 120(1) provides: Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. 7 Section 120(3) provides: In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission 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. 8 Under s 120(3), the question is whether, on the whole of the material, there is a reasonable hypothesis connecting the injury or disease with the circumstances of the service rendered by the veteran. The operation of s 120(3) is affected by s 120A(3) of the Act, which provides that a hypothesis connecting a person's injury or disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles that upholds the hypothesis. The hypothesis raised by the material will only be reasonable if it is consistent with or fits the template of the Statement of Principles. 9 There were, at the time of the respondent's decision, the following instruments in operation: Statement of Principles No 5 of 2008, concerning PTSD; and Statement of Principles No 17 of 2008, concerning alcohol dependence. At the time the Tribunal made its decision, Statement of Principles No 17 of 2008 had been substituted with Statement of Principles No 1 of 2009, concerning alcohol dependence or alcohol abuse.

Concerning PTSD 10 In considering whether the applicant suffered from PTSD, the Tribunal commenced by setting out the requirements in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) for a diagnosis of PTSD, namely: A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others (2) the person's response involved intense fear, helplessness or horror … 11 The Tribunal then set out the circumstances of the event described as the Watson's Bay event. The Tribunal recorded at [11] to [12]: The fourth event concerned an alleged assault near Watson's Bay, Sydney on 26 October 1968 (the Watson's Bay event). Mr Summers stated that after his father's funeral in Melbourne he travelled to Sydney to await transport to Vietnam to resume his normal duties. He said that he and a colleague were drinking at a hotel when they became involved in an altercation with a group of sailors. As they left the hotel to walk back to the army base near a cliff face the sailors followed, and he awoke in hospital the next day with life-threatening injuries to his neck, head and back. His spleen had to be removed. Mr Summers said that he was told that he had been found unconscious that morning at the base of the cliff, and was fortunate that he had not been swept out to sea. Mr Summers stated that he was kept in hospital for several weeks and was unable to return to Vietnam. His remaining commitment to National Service was served as a steward in the Officers' Mess at Victoria Barracks, Melbourne. Under cross-examination Mr Summers agreed that in an injury report dated 5 November 1968 he stated that he had no clear recollection of the Watson's Bay event, but maintained that he did not remember making the statement as he was interviewed only ten days after suffering serious injuries and was probably taking prescribed medication at the time. He also agreed that the investigating officer's report dated 6 November 1968 referred to the injuries having occurred …as a result of a fall down a cliff face at South Head … following a brawl between Mr Summers and a sailor from HMAS Watson. The investigating officer noted: After wrestling around on the ground they both fell over a cliff onto the rock ledge below. From the statement made by the five sailors interviewed it would appear that everybody was affected by alcohol. Mr Summers stated that he was never interviewed by military authorities about the incident, and that no other person was found with him at the base of the cliff the next day. He was not aware of any charges or disciplinary action against the sailors, but believed that they threw him over the cliff and left him there. Mr Summers agreed that before the Watson's Bay event he had been looking forward to returning to Vietnam, as he enjoyed his role operating the canteen and had settled in well at Vung Tau. 12 The Tribunal concluded at [22] - [23]: In respect of the Watson's Bay event the Tribunal takes into account that Mr Summers suffered life-threatening injuries and was not discovered until the day after his altercation with the sailors. The Tribunal accepts that the incident prevented Mr Summers from returning to Vietnam and had far-reaching consequences regarding his physical and psychological health. However Mr Summers admitted that he was intoxicated at the time and had no recollection of the incident itself, and only remembered the altercation at the hotel and its immediate aftermath when he said that the sailors followed him. Dr Velakoulis made no mention of the incident in his report, and only clarified the matter with Mr Summers on 1 September 2010, which was after the matter had been raised as a significant stressor by Mr Summers on the first day of the Tribunal hearing. Dr Debenham diagnosed PTSD but gave no reasons. The only objective report of the incident was by an investigating officer shortly after the event. That officer referred to a fall over the cliff after wrestling and that the personnel involved were intoxicated. The Tribunal takes into account that Dr Pomorin referred to the incident as a fight but reported Mr Summers had not described any emotionally traumatic event. In all the circumstances the Tribunal concludes that the material supports Dr Strauss' evidence that there is insufficient reliable information to substantiate the claim of risk of death or serious injury, particularly as Mr Summers had only a vague memory of events on the night in question and no recollection of any assault or accidental fall from the cliff. Therefore the Tribunal finds that the Watson's Bay event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.

Concerning Alcohol Dependence 13 The other decision to which the appeal relates concerns the question of alcohol dependence. On this matter, the Tribunal, at [26], reasoned as follows: In the circumstances of this case, where Mr Summers has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 - 98 [Deledio]: 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 [Statement of Principles] 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. 14 The Tribunal held that steps 1 and 2 required by Deledio had been satisfied. The Tribunal then at [31] considered the relevant part of the Statement of Principles No 1 of 2009 which stated: In SoP No1 of 2009 the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are stated in paragraph 6 : … (d) experiencing the death of a significant other within the five years before the clinical onset of alcohol dependence or alcohol abuse. The Tribunal also considered the equivalent paragraph 6(d) in SoP No17 of 2008 applicable at the time the applicant made his claim, which was in identical terms save that the relevant period was two years rather than five years. 15 The Tribunal held that step 3 required by Deledio was not satisfied. It said at [33]: … With respect to factor 6(d) of SoP No 1 of 2009 and factor 6(d) of SoP No 17 of 2008 concerning the father's death event, on all the material and without making any findings of fact on whether Mr Summers experienced the death of a significant other within the five years or two years before the clinical onset of alcohol dependence respectively, the circumstances are that he commenced drinking to excess while in Vietnam and after two and a half months his father died. There is no relationship between the factors and his operational service. It was correctly pointed out by counsel for the respondent that the Tribunal's reference to "two and a half months" in this passage should have been a reference to "three and a half months". 16 The Tribunal's conclusion at [33] must be seen against the evidence referred to in [27] to [29] of the Tribunal's decision as follows: Mr Summers told the Tribunal that before joining the army he was a light social drinker, but that when he was assigned to operate the Other Ranks canteen at Vung Tau he began to drink to excess, especially as he did not pay for drinks and had unlimited access to beer, the weather was hot and humid, and drinking helped him sleep. He said that he had a good job at the canteen, was his own boss and no-one bothered him. He could wake up at 11 am each day. He could drink whenever he wanted to, and was soon consuming about 18 to 24 cans of beer each day, and spent every day operating the bar. Mr Summers stated that he continued to drink heavily after leaving the army and for 20 years he consumed about 10 pots of beer each day at a hotel and then continued drinking at home. He conceded that his drinking caused him to become angry and abusive, which led to marriage problems, and he has reduced his consumption to about six cans of beer each night. Mrs D Summers told the Tribunal that she met Mr Summers when she was aged 14 years and has been married to him since 1969. She confirmed that he was a light social drinker before joining the army and that when he returned to Australia in October 1968 for his father's funeral he was a changed person. He arrived drunk and has been drinking since then. She stated that excessive alcohol consumption has caused enormous difficulties in their relationship and they lost a furniture franchise in 1985 because of his alcohol dependence, despite Mr Summers' success as a salesperson. Mrs Summers explained that Mr Summers had completed numerous alcohol courses but his drinking still affects him and his family relationships. In his reports Dr Strauss stated that Mr Summers' alcohol consumption increased greatly while he was in Vietnam because of the nature of his work in operating a bar seven days per week and associating with people who were drinking. Dr Velakoulis took a family history of heavy drinking by Mr Summers' father and brother, and concluded that during service in Vietnam his alcohol consumption escalated significantly because of the treats he encountered (referring to the canteen event and the accommodation event) and his bar work role. Dr Pomorin stated that Mr Summers told him … I mainly drank over there because it was more than accessible.

GROUNDS OF APPEAL 17 The notice of appeal is not very instructive as to the questions of law upon which the applicant relies. Indeed, the respondent has challenged the competency of the appeal on the basis that many of the grounds raise questions of fact, not law. Ordinarily, this obvious defect in the notice of appeal would have been attended to during the preparatory stages of the appeal, but this has not been done. Instead, the applicant has filed written submissions, which in many instances have but a fleeting linkage with the notice of appeal. 18 It serves the interests of justice best in this case to seek to extract from the not always clear written submissions the essence of the grounds of appeal upon which the applicant seeks to rely. From those written submissions, both original and in reply, and from the oral submissions made on behalf of the applicant today by Mr De Marchi, it seems that six complaints are made about the decision of the Tribunal. 19 The central complaint seems to be that the determination that the applicant does not suffer from PTSD as a result of the Watson's Bay event is so unreasonable that a reasonable Tribunal could not arrive at that view. In the applicant's written submissions, the argument is expressed as follows: 10. … In summary, the Tribunal determined not only that the veteran did not experience intense fear, helplessness or horror during the Watson's Bay event but also that it could not be satisfied that the veteran was at risk of serious death or injury at all. This despite that the veteran fell or was thrown off the cliff and suffered a [sic] injuries which required weeks of intensive care in a hospital. 11. The Tribunal erred in failing to properly consider the possibility that the veteran suffered from post-traumatic stress disorder arising from the incident even though he did not remember witnessing it personally and was later informed and confronted with the fact of its aftermath in hospital. In so finding the Tribunal wrongly precluded itself from considering all and the material as it was required to do in examining whether the Watson's bay event had led to the veteran's PTSD. 12. In so far as the Tribunal held that the veteran did not experience 'fear, helplessness or horror', the Tribunal was in error in not considering the frailties of human experience and that persons involved in altercations such as those experienced by the veteran may well experience intense fear, helplessness or horror. No evidence existed to suggest otherwise. The Tribunal's decision was therefore manifestly unreasonable. The Court is encouraged to find, as a matter of fact pursuant to s44, of the Administrative Appeals Tribunal Act 1975 that the veteran in the circumstances can be deemed to have experienced intense fear, helplessness or horror as a result of the events in Watson's Bay. 13. In so far as the Tribunal held that the veteran did not experience an event that involved risk of serious death or injury, the Tribunal was plainly in error. This error was so unreasonable that no reasonable Tribunal could make it. All of the available evidence points to the fact that the veteran not only experienced a risk of serious injury: he experienced serious injury and was at risk of death. The veteran was in an altercation with sailors in Watson's Bay. The veteran was found the next morning after the incident at "the base of the [Watson's Bay] cliff with life-threatening injuries to his neck, head and back". The veteran's injuries were therefore consistent with the veteran being pushed or falling from the cliff in the midst of the altercation. That is the only way in which the veteran's injuries are explicable. 20 The applicant's second complaint is that the Tribunal wrongly failed to consider whether there was a reasonable hypothesis connecting the PTSD with the applicant's service. Third, it seems to be contended that the Tribunal's reasons were inadequate in that they did not explain why the Tribunal reached the conclusion that the applicant did not experience, witness, or was not confronted with an event involving actual or threatened death or serious injury, or threat to the physical integrity of himself, and that his response did not involve intense fear, helplessness or horror, as is required in the definition of PTSD. Fourth, it was contended that the Tribunal failed to consider whether the applicant suffered PTSD as a result of having been notified of the death of his father. 21 The remaining two complaints relate to the decision concerning alcohol dependence. The fifth argument is that the Tribunal failed to identify the death of the applicant's father as a reasonable hypothesis to link the applicant's service to his alcohol dependence. This argument was explained in [27] to [31] of the written submissions as follows: The Tribunal held that the veteran 'commenced drinking to excess while in Vietnam and after two and a half months his father died. There is no relationship between the factors and his operational service. In the passage quoted above, the Tribunal correctly identified a possible hypothesis linking the veteran's service to his alcohol dependence: namely, that the death of the Applicant's father affected his drinking. However, it held that, on the material, there was 'no relationship' between the factors and the veteran's operational service. Therein lies its error. In fact, it is possible that the veteran's alcohol dependence either began when the veteran heard of his father's death. The material certainly indicates that the veteran began drinking to excess 'while in Vietnam' but it does not specify a particular date of his service upon which his drinking began or, indeed, when it was exacerbated to the point of abuse or dependence. The Tribunal failed to identify a possible hypothesis linking the veteran's service to his alcohol dependence: namely, that upon being informed of his father's death, the Applicant's drinking became excessive. This material was available and was pointed to the Tribunal but it ignored it. This hypothesis was available from the material before the Tribunal. The material indicated that the veteran began drinking to excess 'while in Vietnam'. It was the Commission's psychiatrist who believed that the alcohol dependence commenced in Vietnam AB 111. The veteran's drinking could have been exacerbated to the point of abuse or dependence after he was informed of his father's death or shortly after it. The Applicant's wife gave evidence of his state upon return from Vietnam on compassionate grounds. The Tribunal failed to take these matters into account in dismissing the Applicant's claim. 22 Finally, it is argued that the notification of the applicant's father's death had an aggravating effect on the alcohol dependence. This was a factor, so it was argued, that the Tribunal did not consider. At [36] of the written submissions, the argument was put thus: Equally, the Tribunal did not consider the possibility that the fact of this occurrence aggravated the Applicant's alcohol dependence or abuse, such aggravation occurring after the veteran was informed of the fact of his father's death. This precluded it from finding that the Applicant suffered from war-caused alcohol abuse.

CONSIDERATION 23 The first complaint, namely, that the Tribunal came to a decision which was so unreasonable that a reasonable Tribunal could not have arrived at it, has not been made out. The hurdle for establishing such a ground is high. In [22] and [23], which have been set out, the Tribunal set out the evidence relevant to the question whether the applicant suffered PTSD as a result of the Watson's Bay incident. It analysed the evidence obtained from the applicant and from the four psychiatrists who had given evidence: Dr Pomorin, Dr Strauss, Dr Velakoulis and Dr Debenham. Between [13] to [16] of its decision, the Tribunal summarised the evidence of each of those psychiatrists. 24 The Tribunal referred to the report of Dr Pomorin, and to his statement that Mr Summers did not experience any emotionally traumatic event during his period of service, and there was no history of re-experiencing symptoms, anxiety or depressive illness. The Tribunal then referred to reports of Dr Strauss in which he stated that Mr Summers did not have a diagnosable PTSD as there was insufficient reliable information to substantiate the claim of risk of death or serious injury. The Tribunal continued: Dr Strauss noted that Mr Summers was unable to remember the alleged assault and being thrown over the cliff because he was unconscious when found, although Dr Strauss said that Mr Summers had claimed to dream about the incident, despite having a vague recollection of the events and no memory of the actual assault. Dr Strauss concluded that there was no psychological impairment arising from the alleged assault. 25 The Tribunal subsequently dealt with the report of Dr Velakoulis who was Mr Summers' treating psychiatrist for just over a year. Importantly, the Tribunal observed that Mr Velakoulis made no mention of the Watson's Bay event. The Tribunal further observed that Dr Velakoulis also agreed that in respect of the Watson's Bay event, conscious recall is normally required before a diagnosis of PTSD may be made, but acknowledged that he is not an expert in this field. 26 The Tribunal then referred to the very short report of Dr Debenham, another consultant psychiatrist, who simply asserted in his report that the applicant was suffering from service related PTSD. The Tribunal noted that Dr Debenham gave no reasons. 27 The Tribunal made an assessment of this medical evidence in [22] and [23]. Clearly there was some contention between the views expressed by the doctors. The Tribunal took a rational approach by looking to the only objective report of the incident which was by the investigating officer shortly after the event. 28 In view of the fact that the applicant had only a vague memory of events on the night and no recollection of any assault or accidental fall from the cliff, the Tribunal concluded that the Watson's Bay event did not constitute a traumatic event and the applicant did not have the required response involving intense fear, helplessness or horror. It was perfectly rational for the Tribunal to conclude, in view of this evidence, that the applicant did not exhibit the response required under the definition in the manual of PTSD. There was simply no evidence of an intense fear, helplessness or horror. 29 The finding that there was no recollection of the assault or the accidental fall, meant that the first part of the definition of PTSD could not have been satisfied because the applicant did not experience, witness, or was not confronted with an event that involved the actual or threatened death or serious injury as required. 30 In the end, the applicant's case amounted to an assertion that it was sufficient to fall within the terms of the definition of PTSD if, as it was said, the evidence showed that the applicant was told about the horror of the events afterwards and took that into account against the background of his hospitalisation. Even if it were possible to read the words "confronted with" in the first part of the definition, as not requiring a person to actually experience or witness the event, but rather to be told of it later, there was a basis in the evidence for the Tribunal to determine, as it did, that the applicant did not have a response to that event which involved intense fear, helplessness or horror. 31 The applicant's second and fourth complaints are that the Tribunal wrongly failed to consider whether there was a reasonable hypothesis linking the PTSD with the applicant's service, and that the Tribunal failed to consider whether the applicant suffered PTSD as the result of being notified of the death of his father. Both of these contentions are based upon the initial finding that the applicant did suffer PTSD. However, once it is accepted that the Tribunal made no error in concluding that he did not, these grounds fall away. 32 The third complaint is that the reasons given by the Tribunal for its conclusion that the applicant did not fall within the definition of PTSD were inadequate. Again, this cannot be accepted. The Tribunal set out the evidence given by each of the psychiatrists and the evidence of the applicant. It had to choose between the contending views. The Tribunal explained that it relied upon the applicant's lack of recollection of the assault and the vague memory of events on the night, as supportive of the view expressed by Dr Strauss that there was insufficient reliable information to substantiate the claim that the applicant had experienced a traumatic event in the terms required by the manual definition. 33 The final ground is based on the argument that the Tribunal failed to address whether the notification of the death of the applicant's father was a factor that aggravated his alcohol dependence. A claim on this basis would be contemplated by [6(j)] of the Statement of Principles. The Tribunal does not indicate that such a claim was made. Mr De Marchi does not assert that it was made. It can hardly be an error on the part of the Tribunal to fail to deal with a claim which was not made. Although the process before the Tribunal is inquisitorial, it is necessary to take a realistic view about the matters which were in issue. 34 The applicant was legally represented at the Tribunal hearing by Mr De Marchi. There is no evidence to which Mr De Marchi could point which would establish the necessary facts upon which a submission could be made that the alcohol dependence was aggravated by the notification of the death of the applicant's father. Mr De Marchi pointed to a couple of random references which amounted to little more than showing that the applicant had a close relationship with his father as well as some evidence from the applicant's wife to the effect that the applicant turned up to his father's funeral in a highly intoxicated condition. Even if the applicant had made the claim before the Tribunal that notification of his father's death had aggravated his alcohol dependence, these pieces of evidence could not have supported it. Consequently, this ground is also not substantiated. For those reasons the appeal must be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.