THE TRIBUNAL'S DECISION
20 The orders of the Full Court involved a general remitter of the matter to the Tribunal to be heard and determined according to law. No orders were made pursuant to s 44(4) limiting the Tribunal's review to a particular issue: cf Repatriation Commission v Nation (1995) 57 FCR 25 at 34 per Beaumont J; Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 156 at [24]. Nor was any order made, if it could have been (cf Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11), directing that the matter be heard again by the same Tribunal member.
21 Nevertheless, the Tribunal was constituted by the Tribunal member who conducted Mr Summers' first review in 2010. There is no evidence of any objection by either party to this member conducting the review. The fact that the same Tribunal member heard the second review, and indeed came to the opposite conclusion on whether Mr Summers suffered from PTSD and whether it was war-caused, may in part explain the respondent's contention on the cross-appeal that the Tribunal did not comply with its obligations under s 43(2B) of the AAT Act.
22 The Tribunal identified three issues arising on the review:
• Does Mr Summers suffer from PTSD? If so, is the condition war-caused?
• Is [his] alcohol dependence war-caused?
• Does Mr Summers qualify for intermediate rate pension or special rate pension?
23 Neither of the parties to the appeal disputed the Tribunal's characterisation of the issues on review.
24 In respect of his claim for PTSD, the Tribunal recorded Mr Summers' reliance on five events during his three-and-a-half months' service in Vietnam as capable of satisfying the criteria for PTSD in the relevant diagnostic manual, Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV). However one event assumed prominence both in the Tribunal's review and on this appeal. It was described by the Tribunal as 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. In a written statement dated 27 November 2007 Mr Summers said that he had been drinking in a hotel with a friend and was confronted by a group of sailors and became involved in a fight as they left the hotel to walk back to the army base near a cliff face. His friend ran off. He said that four or five sailors came at him. One picked up a branch and struck him in the head, fracturing his cheekbone. He said: I was bashed up and thrown down a cliff. In a further written statement dated 15 January 2013, Mr Summers said that he remembered the incident in about the third week of his hospitalisation and the memory distresses him enormously even now. What particularly distresses him is thinking about Australian service personnel acting this way against their own people by leaving him at the bottom of the cliff and not seeking medical assistance or informing the authorities.
In a written statement dated 24 January 2013, Mr Summers said that he was scared when the sailors...approached me and when I was hit with the branch of a tree with a diameter of 2 inches. He expressed amazement and shock when he was told of the circumstances of the incident, and said that he still thinks about the events a lot. He said:
When I think about the sailors leaving me at the bottom of the cliff I feel agitated, angry and wound up. I go through the events again over and over. I am very emotional and tears come and my legs start shaking. I hide in my "Men's Cave" every day - my garage under the house. There I have my fridge, my television and my dog. I sit there in the darkness with the telly on.
Mr Summers stated that he was kept in hospital for several weeks and was unable to return to Vietnam. He said that he was in intensive care for four weeks and was then sent to Concord Rehabilitation Hospital for one week and three weeks of rehabilitation followed, after which he returned to Victoria.
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 10 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 statements made by the five sailors interviewed it would appear that everybody was affected by alcohol.
…
Mrs Summers said that after the incident Mr Summers' personality and behaviour changed and he was not the young man whom she had known before he went to Vietnam because he was always angry and irritable with her, his family and friends. She explained that since the incident Mr Summers will not visit hospitals and will not discuss the incident at any length, although she said that he told her that he remembers one of the sailors coming towards him with a piece of wood. She described his anger, impatience and rudeness, and said that he has nightmares and has difficulty sleeping. Recently, she and Mr Summers were on a cruise ship and, knowing that Watson's Bay would be visible, Mr Summers became anxious and suffered from flashbacks. She said that the incident was, and continues to be, a major part of their lives and that he thinks about it every day.
25 The Tribunal then considered the psychiatric evidence before it, from a number of psychiatrists who had examined the applicant. The two psychiatrists the Tribunal gives the most attention to in its reasons are Dr Strauss and Dr Velakoulis. Dr Strauss concluded the applicant did not have diagnosable PTSD, principally on the basis that none of the events were sufficiently severe to meet the criteria for a diagnosis of PTSD - that is, events involving actual or threatened death or serious injury. Dr Velakoulis ultimately (although not in his original report) diagnosed PTSD on the basis of the Watson's Bay event. What the Tribunal appears to have seen as the key aspect of his evidence, appears at [31] of its reasons:
Dr Velakoulis told the Tribunal that Mr Summers described being fearful after the Watson's Bay event and ruminating about being left alone at the bottom of the cliff, which caused significant stress that contributed to PTSD at a mild to moderate level. Under cross-examination he said that he disagreed with the proposition that recollection of an event is essential to ascribing emotions arising from that event. Dr Velakoulis said that issues such as anxious avoidance and alcohol-related cognitive impairment can result in seemingly inconsistent recall of traumatic and other life events. He said that if the Tribunal finds that PTSD is not made out, neither generalised anxiety disorder nor a major depressive disorder is likely to be an appropriate diagnosis.
26 Accepting that the applicant suffered "life-threatening injuries" from the Watson's Bay incident and was not discovered until the day after his altercation with the sailors, the Tribunal then focused in its reasons on the question of what, if anything, the applicant could recall about the event. The Tribunal had already noted earlier in its reasons that, for a diagnosis of PTSD there must be both a traumatic event of the kind described in DSM-IV and a "response of the required intensity" from the veteran. The Tribunal then explained its conclusion that the applicant satisfied the DSM-IV diagnostic criteria and suffered from PTSD:
Although there are inconsistencies in the accounts of the Watson's Bay event given by Mr Summers over the years since 1968, the Tribunal takes into account that he was affected by alcohol during and after the incident. Mr Summers suffered life-threatening injuries and was hospitalised for several weeks. The Tribunal accepts the evidence from Dr Velakoulis that alcohol-related cognitive impairment can result in seemingly inconsistent recall of traumatic events. Mr Summers has attempted to clarify the impact of the incident on his daily life, and in his statements dated 15 and 24 January 2013 he described his response to the event at the time and afterwards. His evidence was supported by Mrs Summers, whose evidence was frank and credible.
Having considered all the material, the Tribunal is satisfied that the additional evidence, provided at this hearing, overcomes the lack of reliable information identified by Dr Strauss. The Tribunal finds that Mr Summers was exposed to a traumatic event in which he experienced an event that involved actual or threatened death or serious injury, and that his response involved intense fear, helplessness or horror. Therefore, the Tribunal finds that Mr Summers satisfies the diagnostic criteria, and suffers from, PTSD.
27 The Tribunal then applied s 120(1) to this diagnosis in order to determine whether the applicant's PTSD was war-caused. It did so by following the steps set out by a Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82, in relation to the relevant SoP concerning PTSD. Again, neither party suggested there was anything legally erroneous in the approach taken by the Tribunal to this task.
28 The Tribunal then turned to examine whether the applicant's alcohol dependence was war-caused. Applying the SoP on alcohol dependence to the evidence, it determined it was not. This aspect of the Tribunal's findings is challenged on appeal. It is important because, having found the applicant's alcohol dependence was not war-caused, the Tribunal also found, for the purposes of ss 23 and 24 of the Act, that the applicant's alcohol dependence was one of the reasons he was not able to work. This, in turn, meant the applicant could not satisfy s 23 for an intermediate rate of pension, nor s 24 for a special rate.
29 The Tribunal found that the applicant did not satisfy the three or more characteristics required to demonstrate the psychiatric condition of alcohol dependence set out in the definition of that term in cl 3(b) of SoP No 1 of 2009. It found he could satisfy only one: namely that the applicant developed a tolerance for alcohol by the date of his departure from Vietnam namely, 12 October 1968. For the purpose of identifying two more factors from the list in cl 3(b), it then took that date as the date from which the 12-month period referred to in cl 3(b) ran. It concluded:
Therefore as three (or more) of the SoP diagnostic criteria for alcohol dependence were not met in the same 12-month period following Mr Summers' service in Vietnam or the Watson's Bay event, the hypothesis advanced by Mr Summers is not reasonable and does not fit the template of either SoP No. 1 of 2009 or SoP No. 17 of 2008. Therefore, Mr Summers does not satisfy the third step from Deledio and there is no necessity for the Tribunal to consider the fourth step. The Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Summers' alcohol dependence and his operational service during the relevant period, and there is no sufficient ground for determining that Mr Summers' alcohol dependence was war-caused.
30 In this appeal, the applicant challenges the way the Tribunal undertook its decision-making about the factors in cl 3(b) of the 2009 SoP.
31 Having made its findings that only the applicant's PTSD (and not the applicant's alcohol dependence) was war-caused, the Tribunal then turned to ss 23 and 24 of the Act in order to determine whether the applicant was entitled to an intermediate or special rate of pension. The Tribunal set out the evidence before it about the applicant's work history in the retail sector, the circumstances in which he came to move employment and his redundancy from Betta Electrical in 2005, and whether the applicant made any attempts after 2005 to seek remunerative work. It also set out the applicant's own evidence that he lost a franchise business in 1985 because of his alcohol dependence.
32 The Tribunal then directed its attention to the approach to s 24(1)(c) of the Act set out by the Full Court of this Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, which, on the appeal, the applicant conceded was the correct approach:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
33 The reference by the Full Court in Flentjar 48 ALD 1 in point (3) above to "the only factor" is a reference to the "alone test" which is set out in s 24(1)(c) of the Act. In other words, the Tribunal was required to be satisfied that no factors other than the veteran's war-caused injuries or disease could be identified as preventing the veteran from engaging in remunerative work.
34 The Tribunal was satisfied on the evidence that the applicant's war-caused injuries (which it described as "accepted conditions"), including his PTSD, prevented him from continuing to undertake remunerative work. The Tribunal then found, however, that the applicant's alcohol dependence had "contributed significantly" to his inability to work. This, as the Tribunal had already found, was not a war-caused condition. The Tribunal also found that the redundancy and Mr Summers' decision to consider himself retired after the redundancy in 2005 "were important elements in the cessation of employment and in preventing him from continuing to undertake that work". Accordingly, it was not satisfied of the matters set out in s 24(1)(c) of the Act, in particular by reference to step (3) as set out in Flentjar 48 ALD 1.
35 The Tribunal then dealt with the ameliorating provisions in s 24(2) of the Act. These provisions affect the operation of s 24(1)(c) by deeming a veteran within its terms as meeting the criteria in s 24(1)(c). The Tribunal referred to the observations of Gray J in Giesen v Repatriation Commission (2005) 216 FCR 435; [2005] FCA 846 at [21] on the effect of s 24(2)(b) being to bring a veteran within s 24(1)(c) if:
he or she can show that war-caused incapacity is the substantial cause of inability to obtain remunerative work, which the veteran has been genuinely seeking.
36 The Tribunal also referred to the construction of the term "genuinely seeking" given by the Full Court in Leane v Repatriation Commission (2004) 81 ALD 625; [2004] FCAFC 83 at [28]:
The primary judge interpreted the word 'seeking' to mean 'attempting to' or 'trying to'. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant 'do' something. On the other hand the word 'genuinely' is used in the sense of 'sincerely' or 'honestly'. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
37 It then made two findings, in the following terms:
The Tribunal takes into account that in 2009 Mr Summers made an approach to Retravision and a telephone call to a Harvey Norman store. The Tribunal does not consider that these approaches, four years after the redundancy, constitute genuinely seeking to engage in remunerative employment during the assessment period. Further, the Tribunal accepts Mr Summers' evidence that the stores did not want him because of his age and the financial state of the retail industry at that time. The Tribunal is reasonably satisfied that Mr Summers' incapacity from his accepted disabilities was not the substantial cause of his inability to obtain remunerative work in which to engage. For these reasons, the Tribunal finds that Mr Summers does not satisfy s 23(3)(b) or s 24(2)(b) of the Act.
38 The Tribunal's decision, reflecting this reasoning, was that it set aside the decision of the VRB and substituted a decision that the applicant's PTSD was war-caused, but otherwise affirmed the VRB decision.