White v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an application, by way of appeal, under subs 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by Deputy President D.W. Muller who, on 23 September 2003, affirmed a decision of the Veterans' Review Board ("the VRB") made on 12 November 2001. The VRB in that decision had varied a decision of the Repatriation Commission of 1 December 2000 by adding the diagnoses of anxiety disorder with associated alcohol dependence or abuse, but otherwise affirmed the decision of the Repatriation Commission, with the consequence that personality disorder, anxiety disorder and associated alcohol dependence or abuse were not war-caused within the meaning of the Veterans' Entitlements Act 1986 (Cth) ("the VE Act"). Factual Background 2 The applicant was born on 25 February 1951 and enlisted in the Royal Australian Navy on 1 April 1967 aged 16.1/12. The applicant has operational service in accordance with the VE Act during the following periods: (a) 21 May 1968 - 13 June 1968 (HMAS Sydney); (b) 13 November 1968 - 28 November 1968 (HMAS Sydney); (c) 22 February 1970 - 1 March 1970 (HMAS Yarra); (d) 22 February 1971 - 1 March 1971 (HMAS Yarra). 3 The applicant has defence service in accordance with the VE Act from 7 December 1972 until he was discharged on 22 May 1974 but does not rely upon defence service. 4 The parties agree that the applicant has the following accepted service-related disabilities: (a) sensorineural hearing loss of the right ear with tinnitus; (b) gastro-oesophageal reflux disease; and receives the disability pension at 40 per cent of the general rate. 5 On 7 August 2000 the applicant made a claim for a number of injuries/diseases but the claim for the following were refused: (a) personality disorder; (b) anxiety disorder; (c) alcohol dependence or abuse. 6 As noted above, on 12 November 2001, the VRB varied the diagnosis by adding the condition of generalised anxiety disorder with associated alcohol dependence or abuse. 7 The applicant's claim relates to incidents which occurred on his first voyage to South Vietnam (Vung Tau) on or about 1 June 1968 when he was 17 years of age. 8 Mr White claims that he suffers from the psychiatric illness of generalised anxiety disorder with alcohol dependence or abuse as a result of two experiences he suffered whilst serving with the Royal Australian Navy in South Vietnam on or about 1 June 1968, when he was a member of the crew of a Landing Craft Medium which was delivering soldiers and supplies at Vung Tau Harbour in South Vietnam from the HMAS Sydney on which he was serving at the time. He says he suffered acute embarrassment when he had difficulty in opening the bow door of the Landing Craft Medium, and he was startled when he heard some scare charges near the HMAS Sydney. 9 Subsection 13(1) of the VE Act renders the Commonwealth liable to pay a pension to a veteran where that veteran has become incapacitated from, relevantly, a war-caused disease. The circumstances in which a disease is taken to be war caused are set out in subs 9(1) of the VE Act. 10 The standard of proof to be applied by the Repatriation Commission, and on review by the Tribunal, to the question of whether a disease is a war-caused disease is dealt with in s 120 of the VE Act. Where, as here, a claim relates to operational service, the standard of proof to be applied to the question whether a disease is a war-caused disease is prescribed by subss 120(1) and (3). Those provisions are applied in the manner explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. 11 For a claim such as the applicant's (which was made after 1 June 1994), subs 120(3) of the VE Act requires that: '… the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining [a disease was a war-caused disease] … 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 … disease … with the circumstances of the particular service rendered by the person.' 12 The hypothesis raised by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, the Statement of Principles ("the SoP") that upholds the hypothesis: Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio") at 96. 13 The question, "What do subs 120(3) and 120A(3) require of a decision maker?"was also addressed by a Full Court (Black CJ, Drummond and Kenny JJ) in Repatriation Commission v Hill (2002) 69 ALD 581 at 593-594. Ms Helen Bowskill, counsel for the respondent contends in her written submissions, that after summarising the authorities the Full Court made the following points: '(a) The AAT is required to measure any hypothesis raised or pointed to by the material before it against the "template" of the relevant SoP; if the hypothesis does not fit (because it does not contain the facts which the SoP sets out as the minimum that must exist and be related to the veteran's service) then the hypothesis will not be reasonable for the purposes of s 120(3) and the claim fails (at [51]). (b) In order to satisfy ss 120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP. In order to satisfy these provisions, the material must "raise" or "point to" such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP (at [53]). (c) A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP (at [55]). (d) Where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable (at [57]).' 14 The Tribunal had before it a number of reports from medical practitioners. Mr White had been treated by a general practitioner, Dr Di Palma since 1984. Dr Di Palma reported: 'After several visits toward the end of 1984 and at the beginning of 1985, Paul was suffering from an over-active mind unable to sleep and in a confused state. He was unable to concentrate and was drinking excessive amounts of alcohol in the belief he would alleviate his problems with oblivion. It was some years later, that I became aware of the fact he had Vietnam service or that he had even served in the Navy, as he never spoke of it.' … Mr. White continues to smoke and drink despite many attempts to cease and continues to attend Dr. Likely (Psychiatrist) every two months at his office in Townsville on my original referral.' 15 Dr Likely first treated Mr White on 17 April 2001. His report dated 18 June 2001 contains the following: 'In my opinion, Mr. White has been suffering from generalised anxiety disorder with associated alcohol abuse. Both disorders appear to have arisen as a result of his Service experiences in Vietnam.' 16 Two other psychiatrists gave reports. Dr Rowe reported on 11 November 2000: 'Mr White presents as a chronic personality disorder of inadequate type and apart from his excessive alcohol intake, he has no specific psychiatric illness as such. In my opinion he is not an alcoholic but does drink excessively, as he claims it helps him to feel more relaxed. He appears to have no interest in working as he complains of having a back problem which would prevent him from doing any significant manual work. He appears quite content to drift on the way he has been doing over recent years. I consider his personality disorder is constitutional and has little to do with his previous war service.' and Dr Mulholland reported on 10 October 2002: 'Mr Paul White appears to suffer from longstanding personality-psychiatric problems. The precise nature of these is difficult to elucidate however the clinical picture is consistent with the following: · chronic generalised anxiety disorder · chronic panic disorder with agoraphobia · chronic substance (alcohol) abuse/dependence - in current remission · chronic personality disorder (unspecified) Mr Paul White relates the development of his psychiatric condition primarily as being due to the trip on the landing craft which has been briefly described by myself and is extensively described in the material. It is considered unlikely in the extreme that that particular event would cause a claimed life time of psychiatric. The experience as he describes it was stressful for him but is unlikely to qualify as a stressor or severe stressor as per the relevant SOP's.' In the course of cross-examination, Dr Mulholland was asked: 'So, are you saying that you don't think any one off incidents can cause long term psychiatric disorders?---… it's just so unlikely in the extreme. … It's not what happens in psychiatry. … you do not get situations where a one off incident results in years and years of diagnosable psychiatric conditions. It just doesn't work that way.' 17 The Tribunal found that the material indicated an hypothesis linking the applicant's service in South Vietnam with his current generalised anxiety disorder and alcohol dependence or abuse. This is the "first step" which the Full Court in Deledio referred to at 91E. 18 The Tribunal identified that there was in force a relevant SoP, identifying for generalised anxiety disorder the SoP Number 1 of 2000 and in particular factor 5(a)(ii) which provides: '5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person's relevant service are: (a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only … (ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; … "severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;' For alcohol dependence or alcohol abuse SoP Number 76 of 1998 applies, and in particular factor 5(a) which provides: '5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are: (a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; … "psychiatric disorder" means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;' This is the "second step" from Deledio referred to by the Full Court at 91F. 19 The "third step" of Deledio referred to by the Full Court at 91G required the Tribunal to form an opinion whether the hypothesis raised was a reasonable one. Where there is an applicable SoP, the hypothesis will only be reasonable if it "fits"; that is to say, is consistent with the "template" to be found in the SoP. 20 The finding of the Tribunal was that the hypothesis linking the applicant's operational service in South Vietnam with generalised anxiety disorder was not reasonable. The Tribunal said at pars 14-15 of its reasons: 'The Tribunal finds that SoP No. 1 of 2000 is not satisfied because the events relied on (becoming embarrassed over his failure to clear the jammed door of a landing craft and feeling vibrations against the hull of the landing craft which he later learned were scare charges being detonated) does not meet the definition of "severe psychosocial stressor". Neither event comes anywhere near the examples given in the SoP such as being shot at, death of or serious injury to a close friend or a relative, assault including sexual assault, major illness or injury. In any event the diagnosis of generalised anxiety disorder did not occur until over thirty years after the events in SVN. Any suggestion in 2001 that the Applicant's fighting, drinking and whoreing, which may have occurred within two years of the claimed stressful events in 1968, were indicators of the clinical onset of an anxiety disorder, is pure speculation.' 21 The claim of alcohol dependence or abuse was dealt with by the Tribunal shortly at par 17 of its reasons: 'The claim that the Applicant's alcohol dependence/abuse is war-caused because it started due to a psychiatric illness fails because the Applicant is not suffering from a war-caused psychiatric illness.' 22 Having concluded that there was no reasonable hypothesis connecting Mr White's generalised anxiety disorder with his operational service, it was not necessary for the Tribunal to address the "fourth step" of Deledio referred to by the Full Court at 91G, that is to say, the application of subs 120(1) of the VE Act. 23 The grounds pressed by the applicant on the appeal were: 'E. The Learned Tribunal member failed to have regard to evidence given by the Applicant as to the matters of on-set of his disorder. F. The Learned Tribunal member accepted the view of Dr Mulholland that "I do not accept that a one-off incident like this could cause the psychiatric illness. A one-off incident does not result in years and years of psychiatric problems. It does not work that way", a view which is in conflict with the Statement of Principles. G. The Learned Tribunal member considered that "acute embarrassment" and "fear" did not meet the definition of 'severe psychosocial stressor' as defined in Instrument No. 1 of 2002, but failed to give effect to the subjective nature of the stressor as required by the Statement of Principle. Further the Learned Tribunal member focused upon the nature of the stressor not, as is required under the Statement of Principle, the subjective effect of the stressor upon the individual.' 24 As to the complaints about the onset of the disorder, it has to be realised that the findings by the Tribunal on this question were, in a sense, secondary, it having concluded that the hypothesis raised by the material did not fit the template in the SoP, because the events relied upon by the applicant did not meet the definition of "severe psychosocial stressor". It is not correct to assert, as was done on behalf of the applicant, that the Tribunal failed to have regard to the evidence emanating from Dr Likely as to the onset of his disorder. The Tribunal found that Mr White did not experience a "severe psychosocial stressor" and further, that the clinical onset of generalised anxiety disorder did not occur within two years from the experiencing of what was said to be a "severe psychosocial stressor". 25 That conclusion, it seems to me, was one of fact, being an opinion which could have been formed by a reasonable person correctly understanding the law, and not being one which was not capable of being reasonably formed, in the sense of being "honestly held and not reached capriciously or arbitrarily", nor "irrational": Bull v Repatriation Commission (2001) 188 ALR 756 at 762. 26 The view expressed by Dr Mulholland did not determine the decision of the Tribunal. The Tribunal's decision expressed the view that SoP Number 1 of 2000 was not satisfied: '… because the events relied on (becoming embarrassed over his failure to clear the jammed door of a landing craft and feeling vibrations against the hull of the landing craft which he later learned were scare charges being detonated) does not meet the definition of "severe psychosocial stressor." The hypothesis was not reasonable, because it did not fit, in the sense of being consistent with, the template in the SoP. 27 On the conclusion by the Tribunal as to the absence of a "severe psychosocial stressor", I accept the submissions on behalf of the respondent that the concept of "experiencing" a "severe psychosocial stressor" in the SoP embodies both objective and subjective elements. 28 The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated. Counsel for the applicant, Mr Darin Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at par 90, where the Tribunal stated that the examples given in the SoP are "examples of what is meant by 'substantial distress'". In my opinion, the ordinary language of the definition makes it clear that the examples given are of the "identifiable occurrences" contemplated, not of "substantial distress". The examples are of "occurrences", not emotions. 29 The reference to "experiencing" a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase "experiencing a severe stressor" in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence "that evokes feelings of substantial distress in an individual" also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase "experiencing a severe stressor". 30 In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary. 31 The Tribunal determined that the events relied on did not meet the objective requirements of an identifiable occurrence contemplated by the definition of "severe psychosocial stressor". Since both elements of the definition were necessary for there to be a severe psychosocial stressor, the Tribunal concluded that there was no "severe psychosocial stressor". 32 In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition of "severe psychosocial stressor" would be not only irrelevant and devoid of utility, but positively misleading. 33 It is true that the examples given in the definition are, or could be "one-off" incidents, and the SoP is predicated on the possibility that such a stressor could cause anxiety disorder. This position is inconsistent with the statement of Dr Mulholland that '… you do not get situations where a one off incident results in years and years of diagnosable psychiatric conditions. It just doesn't work that way.' Those comments have, however, to be read in the context that they follow Dr Mulholland's opinion that 'I can't really accept that a one off event like that would cause … those [Axis] one diagnoses.' (Emphasis added.) 34 In any event, the Tribunal's decision was not based on an acceptance of Dr Mulholland's view of causation of the psychiatric illness of Mr White; it was based on the conclusion that the occurrences on which Mr White relied did not fall within the definition of "severe psychosocial stressor", as that definition is properly to be understood. 35 The Tribunal committed no error of law in its finding of an absence of a severe psychosocial stressor. 36 In my opinion, no error of law has been identified in the reasons of the Tribunal. The appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .