Summers v Repatriation Commission

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.

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