CORAM: Kiefel J
DATE: 19 March 1997
PLACE: Brisbane
REASONS FOR JUDGMENT
On 7 June 1996 the Administrative Appeals Tribunal, constituted by a Deputy President, determined that the applicant's rate of pension under the Veterans' Entitlements Act 1986 ("the Act") be 90 percent of the General Rate with effect from 17 November 1994. Although not expressed as part of its decision, the Tribunal also determined that the applicant was not eligible for a Special Rate of pension under the Act. The applicant appeals from the latter decision. The Repatriation Commission ("the Commission") appeals from the decision as to the proportion of the General Rate to be applied. The Veterans' Review Board had determined that it be only 40 percent.
The applicant's appeal has, as its focus, the provisions of s 24(2) which require that the applicant's war-caused disorder, which was in the nature of a post-traumatic stress disorder, was "the substantial cause of his …inability to obtain remunerative work in which to engage". The Commission, in its appeal, contends that the Tribunal stated its conclusion as to the applicant's level of impairment under the statutory assessment guide, but without providing any reasons. Alternatively it submits that the evidence to which the Tribunal might have had regard could not support the necessary findings of fact.
The Statutory Provisions
Section 14(1) of the Act provides that a veteran may make a claim for a pension. That claim is then determined by the Commission. Section 21A provides that the Commission shall determine "the degree of incapacity" of a veteran from war-caused injury according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions ("the Guide"). The relevant guide is an instrument under the Act dated 17 June 1994 and approved by the Minister (see s 29). Section 24(1) then applies if a veteran has not turned 65 when the claim is made, the degree of incapacity from the war-caused injury is determined under s 21A to be at least 70 percent, the veteran is totally and permanently incapacitated within the meaning of the section, and if:
"(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;"
The Commission's appeal challenges the determination, which was made, that the degree of incapacity was at least 70 percent. The applicant's appeal has regard to s 24(1)(c) above and to s 24(2), which is in these terms:
"For the purposes of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."
(Emphasis added).
The Applicant's Appeal - the substantial cause
The findings of the Tribunal were as follows:
"After leaving the army, the applicant worked in a mine for a little over 20 years. One of his reasons for giving up that employment was that he had a disability affecting his knees. He then moved to Devonport and obtained work as a sales assistant in a hardware store. He was retrenched when that business closed down some three years later, and has been unemployed ever since. He has been unable to find work since his retrenchment because of his post traumatic stress disorder, his knee condition, the fact that he has no work skills except as a soldier and a miner, the state of the labour market, and his age. He is now 52 years old. It therefore cannot be said that he is prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from his war-caused post traumatic stress disorder alone."
After reference to the relevant statutory provisions, the Deputy President concluded:
"However I do not think it can be said that the applicant's post traumatic stress disorder is 'the substantial cause of his …inability to obtain remunerative work in which to engage'. It is a significant factor, but the other factors that I have referred to are so significant that it is not, in my view, the substantial cause.
I therefore conclude that the applicant is ineligible for the special rate of pension because he does not satisfy s.24(1)(c). He is not eligible for the intermediate rate of pension either because he does not satisfy s.23(1)(c), which is worded in the same way as s.24(1)(c)."
The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be "a substantial cause" has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial" (the phrase which was contained in the legislation dealt with in University of Tasmania v Cane (1994) 4 Tas R 156, 163, to which I was referred in argument). The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920, Schedule 2, as amended in 1985), requires a stronger and more direct causal connexion between the incapacity and the inability to obtain remunerative work. The Tribunal here was clearly of the view that whilst the applicant's incapacity could be described as "substantial" the other factors, which it listed, were also of importance with respect to the applicant's inability to obtain work. Since their effect was considered of such significance to deny his incapacity status as "the substantial cause", one infers the Tribunal considered that they might also be described as a substantial cause or causes. It seems to me, therefore, that the Tribunal did not suffer from any misapprehension as to the meaning to be given to the words "the substantial cause" in the subsection.
The applicant however submits that the Tribunal failed to disclose how, and to what extent, those other factors were of significance and, as a result, that the requirements of ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act 1975 were not complied with. Section 43(2) requires the Tribunal to give reasons and subsection (2B) requires those reasons to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. A substantial failure to comply with requirements to give reasons can amount to an error of law on the part of a Tribunal: Dornan v Riordan (1990) 24 FCR 564, 573; Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402, 414.
The duty to provide reasons must however be sensibly interpreted: Dornan v Riordan; Muralidharan, 414. The reasons of a Tribunal are to be read fairly, as a whole, and not overzealously: Politis v Federal Commissioner of Taxation (1988) 16 ALD 707, 708. What needs to be conveyed for the purpose of those having an interest in the decision was referred to in detail in Ansett Transport Industries (Operations) Pty Ltd & Anor v Wraith & Ors (1983) 48 ALR 500, 507 (cited with approval in Dornan v Riordan, 568). It is not necessary for a Tribunal to refer specifically to all findings of fact made by it, so long as such findings could be reasonably inferred from the Tribunal's statement of reasons in the context in which they are given: Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368, 369 (and see also McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609, 616-7).
In my view the factors here identified by the Tribunal required no further explanation. The physical disability which affects the applicant's knee was, the evidence at a number of points disclosed, the cause of his leaving his employment in the mine. That he was unskilled, as the Tribunal found, one may well infer would operate to his detriment in any labour market let alone one in which there are a large number of unemployed persons seeking employment A similar inference with respect to the effect of his age or his employability is also sufficiently obvious. A conclusion that they were individually, and in conjunction, substantial in their operative effect was open to the Tribunal.
The applicant further submitted that the Tribunal had not taken into account the work skills the applicant had acquired as a sales assistant when it concluded that a substantial cause of his inability to obtain remunerative work was his lack of skill. In this connexion the only skills identified were that of a soldier and a miner. This appeal is of course limited to errors of law by the Tribunal (s 44(1) Administrative Appeals Tribunal Act), which might however be established if it failed to have regard to a matter it was obliged to take into account. Section 28 of the Veterans' Entitlements Act was then relied upon as the source of a statutory obligation that the Tribunal take all vocational skills into account. I do not think that that is what the section requires. In any event, it is not expressed to be relevant to an inquiry under s 24(1)(c). The submission, in my view, in truth seeks to attack an evaluation of the evidence made by the Tribunal. It may be inferred that it disregarded, or discounted, the applicant's experience as a sales assistant as productive of skills which might be of real benefit in the open labour market. It had however earlier had regard to the fact of that employment as part of the applicant's work history. The view it took was, in my view, a course open to it and a challenge to the correctness of it is not open on this appeal. I add the further observation that it is not apparent that the Tribunal's conclusion would have been different if the skills obtained in that employment had been taken into account.
The Commission's Appeal - The Guide
It is accepted that it was necessary that Table 4.1.1 of the Guide, which deals with emotional and behavioural factors, be applied by the Tribunal. With respect to it, the Guide provides that:
"it is not necessary that every element at a given level be satisfied in order to make a rating at that level, however the elements of subjective and objective stress and at least half of the other criteria must be present. If only a single element from a given level is satisfied it is not sufficient to attract a rating from that level. Furthermore, in order to attract a rating from a particular level, the degree of impairment present must be greater than that described in all the lower levels."
The Tribunal concluded that the applicant's condition fell within Level 45. As I have earlier referred, the Commission's principal submission is as to the adequacy of the reasons disclosed by the Tribunal. Prior to a discussion of the Guide, the Tribunal had explained that it accepted the evidence of the applicant, his wife and the applicant's general practitioner, Dr O'Sullivan. The Deputy President specifically discounted, as irrelevant, the evidence of a psychiatrist, Dr Nielson, on the basis that he was satisfied that the doctor had misunderstood the information sought to be conveyed by the applicant. That finding is not challenged by the Commission. The Tribunal also appears to have discounted the evidence of another psychiatrist, Dr Briggs, since his opinion differs from the conclusion reached by the Tribunal. With respect to his evidence the Tribunal merely noted that he had seen the applicant only once, from which I infer that it rejected the opinion expressed in it on that ground. Although there was a submission to the contrary, it seems to me it was entitled to do so.
The Tribunal then set out the criteria for an impairment level of 45 points:
"FORTY FIVE General description and outcome
Subjective distress Ÿ Severe and frequent symptoms causing considerable distress. Relief from that distress is difficult to achieve even with a high level of support and reassurance.
Objective distress Ÿ Overt evidence of distress.
Functional Effects Ÿ The level and frequency of symptoms causes major difficulties in everyday functioning, but are not totally disabling.
Occupation Ÿ An employed veteran will have major difficulties at work, which may be manifested by job modification or restriction of career opportunities. The disorder may contribute to the loss of a job.
Domestic situation Ÿ Permanent family conflict.
Social contacts Ÿ Marked social withdrawal.
Leisure Activities Ÿ Loss of interest in most recreational pursuits.
Therapy Ÿ Need for intensive specialist psychiatric treatment on an out-patient basis, including medication and/or in-patient hospital care for short periods may have been instituted.
Examples
Severe personality dysfunction or depression. Well-established alcohol or drug abuse. Severe neurotic illness. Major psychotic or depressive symptoms appearing intermittently, and may include delusions, hallucinations and loss of insight, intent or attempts to suicide."
The Tribunal then went on to make its determination as to impairment in these terms:
"The applicant's family conflict is intermittent and not permanent. He has seen specialist psychiatrists only for the purposes of reports and not for the purposes of treatment. He has not required in-patient hospital care. However, apart from the criteria relating to domestic situation and therapy, I believe that the applicant's symptoms satisfy all the other criteria for an impairment rating of 45 points. Pursuant to the fourth paragraph of chapter 4, which I have quoted, I consider that an impairment rating of 45 points is therefore appropriate."