Whitbourne v Repatriation Commission - [2001] FCA 1353 - FCA 2001 case summary — Zoe

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Whitbourne v Repatriation Commission

[2001] FCA 1353

Federal Court of Australia|2001-09-21|Before: Beaumont J

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Court

Federal Court of Australia

Decision date

2001-09-21

Before

Beaumont J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

INTRODUCTION 1 The applicant is a war veteran who performed operational service in Vietnam between 19 December 1968 and 28 November 1969. He lodged a claim in 1997 for a pension under Part II of the Veterans' Entitlements Act 1986 (Cth) ("the Act") in respect of several claimed disabilities, but relevantly for "PTSD" (i.e. post traumatic stress disorder), "respiratory" (i.e. chronic airways disease lungs) and "legs and back" (i.e. osteoarthrosis lumbar spine and knees). 2 By s 13 of the Act, it is relevantly provided that where a veteran has become "incapacitated from" a "war-caused" "injury" or "disease" (as defined by s 9), the Commonwealth is, subject to the Act, liable to pay a statutory pension (s 13(1)(d)). Section 14 provides for the making of a claim for a pension. Section 19 directs how the Repatriation Commission ("the Commission") shall consider and determine, a claim. 3 Relevantly, the claim was refused by the Commission. That decision was affirmed by the Veterans' Review Board and then by the Administrative Appeals Tribunal (constituted by the Hon. R N J Purvis QC) ("the Tribunal"). The applicant now appeals, on a question of law, from the Tribunal's decision.

[2]

THE LEGISLATIVE STANDARD OF PROOF 4 The standard of proof ("SoP") of a claim is provided for by s 120 of the Act as follows: "Standard of Proof 120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) … in respect of the incapacity of a person from injury or disease … related to service 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 … 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." 5 The reasonableness of a hypothesis for the purposes of s 120(3)(c) is provided for by s 120A relevantly as follows: "120A. (1) This section applies to any of the following claims made on or after 1 June 1994: (a) A claim under Part II that relates to the operational service rendered by a veteran; … (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under sub section 196B(2) or (11); (b) a determination of the Commission under sub section 180A(2); that upholds the hypothesis." 6 Relevant SoPs had been determined in the several areas of the applicant's claim. 7 The relationship between s 120 and s 120A was explained by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97): "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 determined by the Authority under 196B(2) or (11) … 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. …."

[4]

(b) The applicant's medical history 9 The Tribunal described the applicant's medical history as follows: · The applicant said that he had had problems with his back when he was young. His back became sore after playing rugby league, including pain (discomfort) in his lower back and neck. This improved once he stopped playing sport, and he then experienced only occasional pain from his work (as a fitter and turner). · The applicant was engaged in Vietnam as a mechanical and electrical engineer repairing guns of tanks and small arms. There were no cranes for lifting equipment, and he struggled to lift heavy machinery. He was required to lift weights up to 50 kg. He was also required to work beneath vehicles in confined spaces, sometimes in a twisted position, and was involved in reassembly which also required him to work in confined spaces. He had trouble with his back and legs, and following his complaint to his commanding officer, he was transferred to the instrument shop for six to eight weeks. This gave some relief. He also sought relief from massage from other officers. · The applicant underwent a medical examination on termination of his service on 18 December 1969. "Prickly heat in Vietnam - now no disability" and sore eyes, were noted. He was discharged on 6 February 1970. · The applicant experienced pain in his back and difficulty in getting comfortable. The discomfort affected his strength. He estimated that he experienced pain two to three times a week, with each episode lasting between one to two days. He was more aware of the pain in the first six months of his Vietnam service. · When he returned to Australia, he worked with the Electricity Commission and, provided he did not lift things, his back was "alright". The pain was never as bad as it was in Vietnam. He controlled pain by using Naposolan. · As Dr Anthony Horden noted in his report dated 14 April 1999, the applicant also experienced stress and became tired undertaking patrols and pickets. He began to smoke more and began to drink. He also had to travel as escort on a truck which was loaded with food scraps. Many serving Vietnamese were there at the time, and they "nearly pulled the truck apart to get at the food scraps". This "confused" and "unsettled" the applicant.

[6]

(1) Post-traumatic stress disorder anxiety 11 The Tribunal noted that the applicant's claims in respect of this condition include having to steam clean (hose down) vehicles which had been damaged by land mines. There was also incidents (mentioned above) where he had to accompany garbage vehicles to the garbage dump, where Vietnamese women and children were present; on one occasion, they had become threatening and he had fired his gun in the air. However, the applicant admitted that he had probably over-reacted. 12 The relevant SoP here is Instrument No 15 of 1994 (as amended by 225 of 1995), to the following effect: · The factors that must exist as a minimum (before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder with the circumstances of that service) are stated as: "(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or (b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or (c) inability to obtain appropriate clinical management for post traumatic stress disorder." · Post traumatic stress disorder is defined in the Instrument as a psychiatric condition meeting the following description: "(a) the person has been exposed to a traumatic event in which: (i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and (ii) the person's response involved intense fear, helplessness, or horror; and (b) the traumatic event is persistently re-experienced in one or more of the following ways: (i) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions; (ii) recurrent distressing dreams of the event; (iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes including those that occur on awakening or when intoxicated); (iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; (v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and (c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following: (i) efforts to avoid thoughts, feelings, or conversations associated with the trauma; (ii) efforts to avoid activities, places, or people that arouse recollections of the trauma; (iii) inability to recall an important aspect of the trauma; (iv) markedly diminished interest or participation in significant activities; (v) feeling of detachment or estrangement from others; (vi) restricted range of affect (eg unable to have loving feelings); (vii) sense of foreshortened future (eg does not expect to have a career, marriage, children, or a normal life span); and (d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following: (i) difficulty falling or staying asleep; (ii) irritability or outbursts of anger; (iii) difficulty concentrating; (iv) hypervigilance; (v) exaggerated startle response; and (e) duration of disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and (f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning." 13 The Tribunal noted several medical reports to the following effect: · Dr Helme, psychiatrist, reported that he could find no evidence of PTSD. · Dr Miller, physician, thought the applicant was suffering from an anxiety disorder, with many of the features of PTSD. However, his expertise did not allow him to give an opinion on the relationship between his claimed disability and war service. · Dr Horden, psychiatrist, diagnosed the applicant with moderately severe chronic PTSD resulting from war service. It was unlikely that his symptoms would improve very much. · Dr Lewin, psychiatrist, found that there was no current psychiatric illness, nor was there any psychiatric illness from his period of service in Vietnam. It was noted that the applicant was under stress related to his relationship with his daughter and son-in-law, and his decision to leave his business, and was abusing alcohol. In a subsequent report, Dr Lewin was unable to diagnose Alcohol Dependence Syndrome because of insufficient evidence. He diagnosed alcohol abuse, which was not considered to be a psychiatric illness. 14 The Tribunal said that it did not accept the claim of PTSD because of failure to satisfy the SoP's prerequisites, first, of "experiencing a stressor" and secondly, of the presence of "post traumatic stress disorder". There was no evidence of the applicant experiencing symptoms of PTSD upon his return to Australia, and there was no present psychiatric illness reported by Dr Helme or Dr Lewin. The incidents witnessed by the applicant in Vietnam were not life-threatening, nor were they consistent with deep disturbance at the time. There was no feeling of intense fear, helplessness or horror, as required by the SoP.

[7]

(2) Chronic Airflow Limitation or "Respiratory Incapacity" 15 The Tribunal noted that the applicant admitted that the claim for respiratory incapacity was not to be diagnosed as "chronic airflow limitation", as the condition does not meet the conditions set out in the relevant SoP. The Tribunal said that the applicant had submitted that the question for the Tribunal was whether there was nothing wrong with the applicant, or there was another condition occluding his lung. 16 The SoP that was potentially relevant was Instrument No 73 of 1997. 17 The Tribunal noted several medical reports to the following effect: · Dr Ambrogetti, physician, reported that he had found no evidence of obstructive airway disease or lung impairment. He encouraged the applicant to stop smoking. · Dr Miller, physician, found mild chronic airways limitation, but this did not satisfy the SoP for chronic airways limitation. However, evidence confirmed pleural thickening with restrictive lung disease and some interstitial peri-bronchial fibrosis, together with mild collapse of the right lower lobe of the lung. The applicant had suffered a chest infection with pleurisy in 1977. At the time, he was smoking thirty cigarettes a day (his smoking had increased during his period of war service) and, in Dr Miller's opinion, there was a reasonable hypothesis that this related to war service. · Dr Collopy, diagnostic radiologist, reviewed a chest x-ray of 11 March 1999, and reported extensive pleural shadowing in one area only. There was a minimal increase otherwise in interstitial shadowing in both lungs, but this would be "consistent with some degree of asthma and/or CAL". No evidence to indicate any pulmonary fibrosis related to asbestos exposure was found. · Professor Breslin, thoracic physician, concluded that the applicant did not suffer any airways disease. The applicant had extremely mild asbestos-induced pleural disease. There was pleural plaque which could conceivably be due to asbestos exposure whilst working in power stations. The pleurisy was not causing any disability and was unlikely to do so. The applicant did not have any restriction. Professor Breslin was unable to say for certain, but it was possible that his smoking may be indirectly (that is, via a respiratory infection) responsible for the pleurisy. There was no evidence of pulmonary asbestosis; no respiratory disease was causing any incapacity; and no event/occurrence on service produced the pleural disease. 18 The Tribunal stated that it was satisfied that the applicant did not suffer any incapacity from any respiratory disease. The Tribunal accepted Professor Breslin's evidence, as he had expertise in asbestos-related disease, and neither Dr Collopy nor Dr Miller was an expert in this area. As there was no incapacity, the Tribunal did not need to consider whether any incapacity was caused by war service.

[8]

(3) Thoraco-lumbar spondylosis 19 The SoP which was potentially relevant was Instrument No 163 and 165 of 1996. By this Statement, the factors that must (as a minimum) exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of the applicant's relevant service, are: (a) having been a prisoner of war; or (b) contracting a significant inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; or (c) suffering an intra-articular fracture in the lumbar spine before the clinical onset of lumbar spondylosis; or (d) having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis; or (e) suffering a depositional joint disease in the lumbar spine before the clinical onset of lumbar-spondylosis; or (f) suffering a trauma in the spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis; or (g) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or (h) suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or (i) suffering a trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical worsening of lumbar spondylosis; or (j) suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis. 20 The definition of "trauma to the lumbar spine" in SoP No 165 of 1996 (substantially the same definition as that in SoP No 358 of 1995), was relevantly as follows: "An injury to the lumbar spine caused by the force of an extraneous mechanical or physical agent that causes the development within 24 hours of the injury being sustained of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery) and there is evidence relating to the extent of injury and treatment such evidence may be considered." (Emphasis added.) 21 The Tribunal noted a number of medical opinions to the following effect: · According to Dr Benanzio, orthopaedic surgeon, the x-rays showed initial degenerative changes in thoracic and lumbar spine. It appeared, on the war service history given, that the applicant had suffered traumas to the spine before the worsening of thoracic and lumbar spondylosis. · Dr Sambrook, Professor of Rheumatology, diagnosed thoraco-lumbar spondylosis and early osteoarthrosis of both knees. But he disagreed with Dr Benanzoio's conclusion that "trauma" could have been caused by the applicant's operational service. There was no discrete episodes with acute symptoms and signs lasting seven days, and it was doubtful that he had spondylosis when he was in Vietnam. Spondylosis is uncommon prior to thirty to forty years of age, therefore, there could be no suggestion of aggravation. The origin of the pain was mechanical (on account of soft tissue affectation), not a structural lesion, and the clinical onset had started about ten years previously. As the applicant's condition was not spondylosis, it could not be related to the SoP. 22 Counsel for the applicant had submitted to the Tribunal that emphasis should be placed on the bouts of recurrent pain whilst he was performing duties in the workshop; on the fact that it took a number of weeks in the workshop for his back to settle down; and on the circumstance that when he was transferred to the air-conditioned location, his pain and discomfort ceased. It was submitted that repeated bouts of incapacity could constitute the necessary trauma required by the SoP and the pain did not necessarily need to be present constantly to equate the required duration. Further, the submission went, signs and symptoms may ebb and flow, although the SoP required signs and symptoms to last for seven days as a minimum. Counsel submitted that - · lifting engaged by the applicant constituted extraneous physical or mechanical agent; · symptoms occurred within twenty-four hours, if not a shorter time, after the particular event; · the applicant had recalled trying to lift things and suffering pain; · acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine were apparent; · the applicant had asked to be relieved of duties due to pain, sought massage from another service man and had difficulty in movement; · it was not necessary for a particular event to be identified; · the applicant was performing heavy duties and there were numerous occasions when his back was painful and caused him grief; · although the applicant's back pain had settled down after a period of service, it had re-occurred in more recent years; and · he had spondylosis and this diagnosis was satisfied on the balance of probabilities. 23 For its part, the Commission had advanced these arguments to the Tribunal: · The definition of "trauma to the lumbar spine" contemplates a significant injury, consistent with the requirement that there be signs and symptoms of each of the three stipulated matters - the signs and symptoms must be acute, that is sharp or act keenly on the senses, significant manifestations of pain, tenderness and altered mobility. Professor Sambrook's opinion and the x-rays did not suggest more than what would be expected at the applicant's age, that is, soft tissue damage and no internal damage to joint or disc. This was not consistent with internal damage to a joint or disc. Professor Sambrook's opinion was that onset of spondylosis occurred after service, so that no question of aggravation arose. There was no incident which lasted for more than seven days, and no history of acute pain. · The account of pain, the requirement for massage and the resolution of the pain within a few days, did not amount to a significant injury as required under the SoP. · The increased mechanical pain, due to an inflammatory condition of unknown cause, was not an injury to the spine or disc meeting the definition of "trauma to the lumbar spine", and the thoraco-lumbar spondylosis was not war-caused. 24 Having considered the parties' arguments, the Tribunal was satisfied that a hypothesis connecting the spondylosis condition presently experienced by the applicant with war service was raised. But the Tribunal was not satisfied that the applicant satisfied one or more of the factors which were required to exist as a pre-requisite to satisfy existence of the condition. Accordingly, the Tribunal found that the condition was not war caused.

[12]

(a) The applicant's argument 27 On behalf of the applicant the following is submitted: · According to the evidence of the applicant, he smoked about ten cigarettes a day before his service, increasing to about thirty during service; and that in about 1977, he had a bout of chest illness. · Dr Miller considered that the illness may have been pleurisy. The applicant also had been exposed to asbestos in his civilian working life. X-rays showed some pleural thickening on the right lower lobe of the lung. In Dr Miller's opinion, the smoking habit led to the chest infection which itself resulted in the pleural thickening. Dr Collopy agreed. · In the applicant's original written submissions, reference was made to Professor Breslin's evidence as, in effect, equivocal. However, in oral argument, counsel for the applicant withdrew that submission, and instead indicated that the Court may now proceed upon the assumption that the diagnostic opinion expressed by Professor Breslin in pars 3 and 4 of his report dated 2 March 2000, may be accepted. · Professor Breslin's opinion relevantly was: "3. He has extremely mild asbestos-induced pleural disease. There is a pleural plaque on the left and the pleural blunting of the right costophrenic angle could conceivably be due to his asbestos exposure while working in the power stations. Alternatively, the pleural changes there may be due to past infection. In any event, it can be stated categorically that neither pleural change is causing any disability and it is extraordinarily unlikely that they ever will. He does not have any restriction and most certainly does not have restrictive lung disease. Restrictive lung disease requires that one's vital capacity at least is reduced on the spirometry but this man's vital capacity is within the normal limits (80 - 120% predicted is within normal limits and this man's vital capacity as measured by me is 89% predicted). 4. Thus the only respiratory disease that he has is some very mild pleural disease which is most likely due to his past asbestos exposure and cannot be related to his Army service in any way. In particular it is not due to his smoking. Smoking does not produce pleurisy. Certainly people who smoke are prone to develop respiratory infections but this is almost always acute bronchitis. It is possible that he developed acute right lower lobe pneumonia predisposed to by his smoking and that this has left him with a little scarring at the right base. However this is precisely just a small scar at the right base, is not causing any trapping of the lung, is not causing any disability and will not cause any disability. Whether or not the pleurisy is indirectly related to his smoking via a respiratory infection I am not able to say for certain and I must say that it is possible. The pleural scarring that is there is not causing any disability and will not cause any disability and does not predispose him to any other abnormality and is not causing trapping of the underlying lung. It is not causing restrictive lung disease. Further, it is quite possible that the pleural changes at the right base are due to his past asbestos exposure as certainly the pleural plaque on the left is." · The claim was to be determined in accordance with s 120(1) and s 120(3), whereby a claim may be based upon "a reasonable hypothesis by which to link the condition [with] war service, … [and] the Commission [is] to accept the claim unless it was satisfied beyond reasonable doubt to the contrary". · (Reliance is placed by the applicant upon the reasoning in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 - 415, as explained as follows in Byrne v Repatriation Commission (1993) 177 CLR 564 at 571: "The position may be summarised as follows: (1) First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.") · Section 120A, introduced in 1994, provides that a "reasonable hypothesis" is to be assessed by reference to statutory instruments made under s 196B. In Deledio, it was held that, for claims made after 1 June 1994, the reasoning in Bushell and in Byrne was applicable in the manner explained in the four Deledio "principles", subject to the "caveat" to the second "principle" that a "hypothesis may still be reasonable if there is no SoP in place". · The Tribunal erred in its interpretation of ss 9, 19 and 120 of the Act by - (a) finding that the applicant did not suffer from any pleural condition, upon the basis that the applicant was not suffering any incapacity from that condition (the first ground of appeal); (b) finding, on the balance of probabilities, that the pleural condition was caused by asbestos exposure, when the question of causation was to be determined at the standard of the reasonable hypothesis as prescribed by s 120(1) and s 120(3) (the second ground of appeal). · In respect of the pleural condition, the hypothesis for war-causation put to the Tribunal was that the applicant's smoking habit was contributed to by his war service; that the smoking led to his contracting pneumonia, which brought about the pleural condition. In accordance with the authorities, it was first necessary to determine whether an applicable statement of principal existed; and if not, the hypothesis was to be assessed without reference to any SoP. · In stating that it was "satisfied on the evidence … that the [a]pplicant does not suffer any incapacity from any respiratory disease; there being no incapacity the question as to whether one arose from a war-caused injury does not arise", the Tribunal erred in law, for these reasons: ¨ Section 9(1)(a) provides that an injury or disease shall be taken to be "war-caused" if it "resulted from an occurrence that happened while the veteran was rendering operational service". Section 5D(1) defines "disease" and "injury". By s 5D(2)(a) it is provided that, unless the contrary intention appears, a reference to the "incapacity of a veteran from a war-caused injury or disease "is a reference to the effects of that injury or disease and not a reference to the injury or disease itself". ¨ As provided by ss 9(1) and 19, the Tribunal's task was to determine whether a war-caused condition exists, tested at the level of the "reasonable hypothesis", as provided by ss 120(1) and (3). If a condition is found to exist, it is then necessary to consider the degree of incapacity. The degree of incapacity is to be determined in accordance with the Guide to the Assessment of Rates of Pension ("GARP") made under s 29. (By s 29(1), it is provided that the Commission may prepare a GARP setting out (a) criteria by reference to which the extent of the incapacity shall be assessed; and (b) the methods by which the extent of that incapacity shall be assessed as a percentage of incapacity (which may be nought (s 29(5)). The level of impairment caused by a condition may fluctuate, and there are many circumstances in which a GARP will give a nil rating for a war-caused condition.) · Moreover, in stating that it accepted Professor Breslin's view that the consolidation he identified was an asbestos related feature, the Tribunal erred in law because - ¨ The question of the cause of the condition "was to be determined at the reasonable hypothesis standard". ¨ In accordance with Bushell, the "reasonableness" of the hypothesis is not to be assessed by reference to competing opinions. ¨ In any event, Professor Breslin acknowledged the possibility that the pleural condition was both "smoking and pneumonia-related".

[18]

(a) The applicant's argument 32 It is submitted for the applicant that, contrary to s 43(2B) of the AAT Act, the Tribunal failed to give reasons as to why the hypothesis raised by the applicant did not meet the requirements of the Spondylosis SoP because: · There was no dispute between Dr Benanzio and Professor Sambrook that the applicant suffered from spondylosis. The applicant's hypothesis was that the applicant's duties in the armoury workshop resulted in the occurrence of trauma which caused or aggravated his spondylosis. · The applicable Instruments were Instrument 163 of 1995 concerning Thoracic Spondylosis and Instrument 165 of 1995 concerning Lumbar Spondylosis. The Instruments are in identical terms for all relevant purposes. In particular the applicant relied upon factors 5 (g) and (k) in each Instrument, which provided: "(g) suffering a trauma to the [thoracic or lumbar] spine before the clinical onset of [thoracic or lumbar] spondylosis; … (k) suffering a trauma to the [thoracic or lumbar] spine before the clinical worsening of [thoracic or lumbar] spondylosis." "Trauma to the [thoracic or lumbar] spine" is defined in clause 7 of each instrument. · In its reasons, the Tribunal recounted evidence and submissions put by each party as to the applicable factors, and then stated: "The Tribunal, on the basis of the evidence placed before it, is satisfied that a hypothesis connecting the spondylosis condition presently experienced by the applicant with his war service was raised. There is in existence a relevant SoP but the hypothesis raised does not contain one or more of the factors required to exist as a pre-requisite to the condition satisfying the SoP." · However, the Tribunal did not give any reasons why no factor was met. The Tribunal did not explain its reasoning, nor indicate which submissions it preferred (if any). It did not refer to those parts of the evidence upon which it based its decision. This was an error of law on the part of the Tribunal, as s 43(2B) of the AAT Act requires the Tribunal to "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". · Thus, in Dornan v Riordan (1990) 24 FCR 564 (at 574), the Full Court said: "In the present case, however, the reasons are so deficient that it is, in our opinion, impossible to ascertain whether there was any other error in the decision-making process". · Further, in Repatriation Commission v O'Brien (1985) 155 CLR 422, Brennan J said (at 446): "If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law." · Accordingly, it is impossible to determine whether the Tribunal correctly applied the reasonable hypothesis standard to the material before it, or whether it considered the evidence given by the applicant as to what he experienced. · Yet, the material before the Tribunal included evidence capable of according with each part of the definition of trauma that appeared in the two applicable instruments. That is, there was material before the Tribunal as to injury and its causation; and as to timing and duration of acute symptoms and signs of pain, tenderness and altered mobility and range of movement.

[19]

(b) The Commission's response to the second ground of appeal 33 For its part, the Commission makes the following submissions: · Section 43(2B) of the AAT Act requires the Tribunal to include in its reasons "its findings on material questions of fact". As has been seen, the summary of the decision-making process in Deledio enables a decision-maker to identify the material questions of fact. Here, they are: 1. Does all the material before the Tribunal point to a hypothesis connecting the disease with the circumstances of the particular service rendered by the person? 2. (If the answer to question 1 is Yes): Is there a Statement of Principles in force? 3. Does the Tribunal consider that the hypothesis fits the template found in the Statement of Principles? (If the answer is Yes, the Tribunal proceeds to a consideration under s. 120(1). If the answer is No, the claim fails). 4. (If the answer to question 3 is Yes): Is the Tribunal satisfied beyond reasonable doubt that the incapacity did not arise from war-caused disease? · The Tribunal did set out its findings on material questions of fact and found that an hypothesis had been raised. It found that there was a relevant SoP in existence, but that the hypothesis did not fit the template set out in the SoP, and therefore the claim failed. · Section 43(2B) of the AAT Act also requires the Tribunal to refer to the evidence on which its findings on material questions of fact are based. However, the Tribunal did refer to the evidence on the thoraco-lumbar spondylosis claim at pars 49 to 51 of its reasons. · The reason why the applicant's hypothesis did not fit the template set out in the SoP can readily be discerned from the reasons: specifically, the definition of "trauma" in the relevant SoP was not satisfied. As the applicant acknowledged in his submissions, his spondylosis hypothesis was based on trauma allegedly sustained during operational service. Trauma was the topic which is addressed throughout the Tribunal's detailed discussion (at pars 52 to 55) of the contentions put to it by the parties. · Furthermore, the applicant's submissions disclosed that he was aware that his claim failed because the hypothesis did not fit the definition of "trauma" in the SoP. The applicant's submission asserts, without preamble, that the Tribunal had before it "evidence capable of according with each part of the definition of trauma". The evidence sought to be relied upon is then cited, presumably with a view to having the Court evaluate it, and substitute its evaluation for that which the Tribunal made. Such a course of action would lie outside the Court's proper functions on an "appeal" under s 44 of the AAT Act. · In any event, the evidence cited in the applicant's submissions does not meet the definition of trauma set out in the SoP. The Tribunal set out the relevant definition:- "An injury to the [lumbar or thoracic] spine caused by the force of an extraneous mechanical or physical agent that causes the development within 24 hours of the injury being sustained of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs unless medical intervention has occurred. Where medical intervention for the injury has occurred (e.g. splinting, corticosteroid injection, surgery) and there is evidence relating to the extent of injury and treatment such evidence may be considered." (Emphasis added.) · Thus, the definition includes a requirement that there be acute signs and symptoms which last for a period of "at least one week". · In the transcript references cited in the applicant's submissions, the applicant said that: - his "pain or discomfort" could last up to a "couple of days"; - if he continued on heavier duties when he already had pain, his pain would take "probably two or three days" to go away; - his pain was worse around August/September and he approached his CO for a change of duties; at that stage "it might last for three or four days"; - when he started his changed duties, his back was "aching … it might have been for three days"; - after "probably three or four weeks" of work on the changed duties, he reached a point where his back "wasn't hurting any more". · The material does not indicate that the applicant suffered acute signs and symptoms which lasted for a period of at least one week. It was not open to the Tribunal to conclude, on this material, that the applicant's hypothesis fitted the template in the SoP, because the definition of "trauma" had not been met. · Alternatively, if the Court is persuaded that the Tribunal's reasons in relation to the spondylosis claim are deficient, then the respondent submits that the appropriate remedy is that prescribed by Brennan J in O'Brien (at 446): "An obligation to give oral or written reasons for a decision is cast on the AAT by s 43(2) of the AAT Act, but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so. An AAT decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it."

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(a) The applicant's argument 35 It will be recalled that the applicant contends that the Tribunal erred in its interpretation of the PTSD Instruments by: (a) finding on the balance of probabilities that there was no factor in the Instruments raised when the question was properly to be determined at the standard of the reasonable hypothesis as provided by ss 120(1) and (3); and (b) finding that the evidence before the Tribunal was not capable of meeting the definition of "experiencing a stressor" contained in the Instruments. 36 The applicant submits: · In Deledio, the Full Court held that at the "step 3" stage, a hypothesis need only be consistent with the factor in the instrument in order for the hypothesis to be reasonable. However, when considering the claim for PTSD, the Tribunal stated: "The Tribunal is not satisfied, there being a relevant SoP, that the evidence contains or establishes one or more of the relevant factors." · Earlier, the Tribunal had stated: "The Tribunal is satisfied that the Applicant does not show a pattern of symptoms consistent with post traumatic stress disorder and the fact that he does not have flashbacks or intrusive thoughts of any stressful events confirms the view that he does not meet the definition of 'experiencing a stressor'." · This approach amounts to an error of law by the Tribunal because the question of whether one or more of the factors in the instrument was raised was to be determined at the reasonable hypothesis standard (i.e. as a claim) and not at the standard of "satisfaction". Further, as required by Budworth v Repatriation Commission [2001] FCA 317 (29 March 2001) and Meehan v Repatriation Commission [2001] FCA 597 (25 May 2001) where the diagnosis of a particular condition may be bound up with its supposed wartime causation, the reverse criminal standard should be applied if on the balance of probabilities the decision-maker finds that a disease exists: see Budworth, particularly at pars 39 - 40; confirmed in Meehan at par 38. The duty of the Tribunal extends beyond merely determining whether any particular precisely defined condition is present, such as may be defined by a particular SoP, to determining whether any disease or injury is present.

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(b) The Commission's response 37 Here, the Commission responds thus: · In its description of step 3 in the decision-making process, the Full Court in Deledio said: "If an SoP is in force, the Tribunal must then form an 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' found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has deemed 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 know 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." · The Tribunal found there was no material before it to meet two of the requirements set out in the SoP. The SoP contains a definition of "experiencing a stressor" which includes a reference to a response "… which involved intense fear, helplessness or horror". The SoP also contains a definition of "post traumatic stress disorder" which includes a list of symptoms. · In Deledio, it was held that the Tribunal is required to form an opinion as to whether the hypothesis fits the SoP. The applicant's complaint appears to be that because the Tribunal used the word "satisfied", it erred in law by applying s 120(4) rather than s 120(3) to the question of whether the applicant suffers from war-caused post traumatic disorder. But this is a distinction without any real difference. · The applicant's further contention appears to be that notwithstanding the facts that - ¨ the applicant's claim for pension had cited a disorder which was described by him as "PTSD anxiety", and was diagnosed by the applicant's general practitioner as "post traumatic stress disorder"; ¨ the applicant's Amended Statement of Facts and Contentions in the Tribunal proceedings had contained the contention that the applicant "suffered a moderately severe chronic post traumatic stress disorder"; ¨ the applicant had tendered to the Tribunal a report by Dr Hordern, a psychiatrist, which contained a single diagnosis, being "moderately severe chronic post traumatic stress disorder"; ¨ the applicant had called Dr Hordern to give oral evidence to the Tribunal that he maintained the opinion which he had expressed in his report; and ¨ the applicant's counsel had cross-examined Dr Lewin, the psychiatrist called by the Commission, without putting to him any question which suggested that the applicant suffers any psychiatric illness other than post traumatic stress disorder.

the Tribunal is said (as has been noted above), by the applicant, to have erred in law by considering whether "a particular precisely defined condition is present" and not "whether any disease or injury is present". · The authorities cited by the applicant in support of this contention are Budworth and Meehan. In Budworth, the argument put to Madgwick J (see par 43), was as follows: "… as it was accepted by the AAT that the applicant had some kind of a mental disorder, the AAT had a duty to consider whether this was war-caused and not simply to limit itself to whether that disorder was PTSD although that was, at least the primary way in which the applicant argued his claim." · Madgwick J held (at par 47): "… There was ample evidence that the appellant had some kind of mental malfunctioning that could be regarded as a disease comprehended by his claim … If there is material before a decision-maker which positively suggests that a veteran may be suffering from a disease then, pursuant to the sections set out above, the primary decision-maker has a duty to determine whether the veteran does have a disease, even though this may impose an onerous task on the decision-maker." · However, in the present case, the Tribunal did not accept that the applicant has "some kind of mental disorder", and the applicant has not contended in his written submissions to the Court that he suffers from "some kind of mental malfunctioning that could be regarded as a disease comprehended by his claim." · In Meehan, Wilcox J gave the following description of the Tribunal's task (par 48): "What the Tribunal should have done, first, was to consider whether the material before it pointed to a hypothesis or hypotheses connecting Mr Meehan's psychological symptoms (whatever their clinical label) with his operational service. This should have included consideration of the question whether the material suggested those symptoms were aggravated by his operational service. If the answer to that was in the affirmative, the Tribunal ought to have identified (as it did) all the Statement of Principles that were possibly relevant to the hypothesis or hypotheses." · This view is incorrect, and should not be followed, for three reasons: First, his Honour's statement "substantially re-writes" the text of s 120(3). Section 120(3) refers to "the disease" - it assumes that "the disease" has been identified. Section 120(3) does not refer to "a disease". Nor does it refer to "psychological symptoms (whatever their clinical label)". Section 120(1) similarly refers to a determination by the Commission that "the disease", not "a disease", "was a war-caused disease"; secondly, his Honour's statement is in conflict with Deledio. The four-step process described by the Full Court in Deledio commences with "a hypothesis connecting … the disease … with the circumstances of the particular service rendered by the person". The Court did not refer to a hypothesis connecting a disease with the circumstances of the particular service rendered by the person, nor a hypothesis connecting "the psychological symptoms (whatever their clinical label)" with the particular service rendered by a person; thirdly, his Honour's statement is in conflict with Repatriation Commission v Cooke (1998) 90 FCR 307. The Full Court there dealt with the functions of ss 120(1) and (3). The Court said that ss 120(1) and (3) specify the standard of proof to be applied when determining whether a disease is war-caused. Their Honours observed that the standard prescribed by ss 120(1) and (3) "applies only to a 'determination' that the disease is war caused" (at 310F) and declared that where causation is in dispute, s 120(3) is to be applied first, followed by s 120(1). Cooke contains no suggestion that ss 120(1) and (3) prescribe the standard of proof to be applied when determining the diagnosis of a disease. · In Benjamin v Repatriation Commission [2001] FCA 522, Whitlam J expressed the view that Meehan was wrongly decided. The Court should decline to follow Meehan in the present case, and the applicant's contention regarding the alleged "duty" of the Tribunal in the present case should be rejected.