University of Tasmania v Cane [1997] FCA 176 | Case summary

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."

The respondent submits that this amounts only to a statement of conclusion and does not satisfy the duty to provide reasons, to which I have earlier referred. It is further submitted that there is no evidence upon which findings relating to the topics of subjective distress, functional effects, occupation, leisure activities and social contacts could be based. No reasons appear in the passage from the Tribunal's determination to which I have referred. There are no findings of fact relevant to these matters appearing elsewhere. It was submitted for the applicant, however, that the Tribunal's reasons may be taken to be those stated by the applicant's general practitioner, Dr O'Sullivan. In evidence the doctor was referred to the Guide and was asked to comment on each of the criteria. He had consulted it prior to the hearing and had concluded that an impairment level of 45 was appropriate. This was, the applicant submits, the only medical evidence accepted by the Tribunal and, it therefore follows, the Tribunal had simply adopted what the doctor had said. Had the evidence of Dr O'Sullivan been complete, containing a description of the symptoms displayed by the applicant relevant to the topic in question and disclosing his application of them to the Guide's criteria, it might have been possible to draw such an inference. Whilst there are dangers in such a course being undertaken by a Tribunal, without analysis or discussion of the evidence, I accept that in some cases it may be possible for a Tribunal to adopt the views of an expert witness, where there are present findings of fact upon which they might be based. Unfortunately, in the present case, both findings and reasoning with respect to the description in the Guide are absent in two respects, one of which is essential to a conclusion as to the level of impairment in question. The two criteria which it seems to me were left unexplained by the doctor's evidence were "subjective distress" and "functional effects". The importance of a finding as to the former is that the Guide requires it to be established before a conclusion that impairment, to the level of 45, is reached. The Guide contains a similar requirement with respect to "objective distress" but it is not suggested that the doctor's evidence was, in this respect, insufficient. It may be recalled that only one-half of the other criteria is required, so that if this issue had turned upon whether the element of "functional effects" had been satisfied the Commission's appeal would fail. Given that it was necessary that both criteria of subjective and objective distress be established, I have considered whether it might be possible to infer that the doctor must have considered that each element was made out. It seemed to me, however, that this was not necessarily to be drawn from the fact that the doctor had concluded that the proper impairment level was 45. It raises the question as to how he came to that view, which is to say that it makes clear that reasons are necessary. The lack of explanation by the Tribunal on this topic may be contrasted with that I have earlier referred to, where the only real complaint was that the reasons given were shortly stated. That is of course not a valid objection, so long as the Tribunal sets out its findings and sufficiently explains them so that it is apparent how its conclusion was reached. (See Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, 483; Rich Rivers Radio Pty Limited v Australian Broadcasting Tribunal (1989) 22 FCR 437, 444; Australian Postal Corporation v Lucas (1991) 33 FCR 101, 108-9). The evidence of Dr O'Sullivan on these two matters was as follows. As to the question whether the applicant had major difficulties in every day functioning, which was part of what a finding of "functional effects" required, the doctor replied: "I'd say he has moderate to major difficulties, you know, occasionally not continuously" More importantly, for reasons to which I have adverted, the doctor answered with respect to part of the requirement as to subjective distress, that symptoms be "severe and frequent …causing considerable distress": "…Certainly occasionally he comes in quite distressed, yes, not always by any means. I guess severe is a very subjective thing to assess but I guess it's - yes, he does intermittently." The deficiencies in this evidence, if it is said to supply the necessary findings and reasoning of the Tribunal, should be obvious. It may be of course that the Tribunal also had regard to the evidence of the applicant and his wife in addressing the matters in the statutory guide. Without reasons however, one cannot tell. For present purposes, once other evidence needs be considered to fill gaps in what is relied upon as the Tribunal's reasoning, the applicant's submission fails. As to the "no evidence" ground relied upon by the respondent, it is not possible to conclude that there was no evidence to support the findings. As I have said, much would depend upon what was to be gleaned from the descriptions provided by the applicant and his wife of his day-to-day life, and more than one view of it is possible. I am obliged to conclude that the Tribunal has not satisfied the requirements of the Administrative Appeals Tribunal Act with respect to the provision of reasons for its decision. Orders The applicant's appeal will be dismissed. The decision of the Tribunal, that the applicant's rate of pension be 90 percent of the General Rate, will be set aside and that matter remitted to the Tribunal for further hearing and determination. Should the parties require consequential orders or directions, they should submit written argument as to them within 14 days, on notice to each other. I certify that this and the preceding eleven pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel. Associate Date: 19 March 1997

University of Tasmania v Cane

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