Consideration of the reasons given by the AAT
30 The AAT's decision identified that the Repatriation Commission had accepted that Mr Willis suffered from the following war-caused medical conditions:
Post-Traumatic Stress Disorder ("PTSD");
Bilateral Censorineural hearing loss;
Bilateral Tinnitus;
Tinea; and
Alcohol Dependence,
("Mr Willis's war-caused conditions").
31 At [4] of its decision, the AAT set out the issues that it needed to consider as follows:
Is Mr Willis unable to work for more than 8 hours per day?
When and why did Mr Willis stop working?
Do Mr Willis's accepted war-caused conditions alone prevent him from working?
32 The AAT's decision is divided into three sections each one headed by one of the three issues identified above. Under the heading "Do Mr Willis's accepted war-caused conditions alone prevent him from working?", the AAT set out paragraphs (a) and (b) of s 24(1). It noted that the parties agreed that Mr Willis met the criterion in s 24(1)(a) and accepted that Mr Willis was unable to work for more than 8 hours per week on the basis of his war-caused conditions. The Tribunal then turned to consider s 24(1)(c). It noted that in Flentjar, Branson J set out the issues posed by s 24(1)(c) and then set out the four Flentjar questions as follows:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
33 Dealing with the first Flentjar question, the AAT found that "the remunerative work undertaken by Mr Willis included labourer, process worker, foreman and handyman". The AAT answered the second Flentjar question in the affirmative.
34 The AAT's reasons then turned to the third Flentjar question and the matter most pertinent to the grounds of challenge here being considered. The Tribunal stated that there "are also other factors to be taken into account in relation to Mr Willis's employability apart from his accepted war-caused conditions". The AAT then set out the comments of Nicholson J at paragraphs [39] and [40] of Forbes, to which I have referred. The AAT then recounted without comment, the evidence of a consultant psychiatrist, an occupational physician and an occupational psychiatrist. Paragraph [38] of the AAT's decision contains the relevant factual findings made. They are as follows:
Mr Willis stopped working (in his last remunerative employment) because of his neck and shoulder injury and then the closure of the factory in which he worked;
he has an inability to walk long distances and a dislike of hills and stairs;
he left school after Year 9 and has no formal qualifications;
he does not know how to use a computer;
he lives in a relatively remote area and has told the Tribunal that there is little work available;
he is 60 years of age; and
he has not been in the workforce since ceasing work around 1998.
35 At [39], the AAT set out its conclusion that Mr Willis's war-caused disabilities are not the only factors preventing him from working and thereafter stated that the answer to the third Flentjar question was no. The AAT said:
His time out of the workforce, his age, his lack of education and inability to use computers or computerised farm equipment as well as his physical limitations in walking long distances are all factors preventing him from undertaking remunerative work of the types he has previously done. His location in a remote area is also a factor.
36 It would appear that the AAT was satisfied that each of the following factors prevented Mr Willis from "undertaking remunerative work of the types he has previously done":
time out of the workforce;
age;
lack of education;
inability to use computers including computerised farm equipment;
limited capacity to walk long distances; and
location in a remote area.
37 It is not clear from the AAT's reasons whether in assessing those factors as causative, the AAT separated out any contribution made by Mr Willis's war-caused conditions. That was a live issue in the proceeding because there was evidence before the AAT that Mr Willis's war-caused conditions had contributed to his time-out of the workforce and that his war-caused conditions had been a cause of his move to the remote area in which he was located. How the AAT dealt with that evidence is not explained by its reasons. It may well be that given its reference to Forbes, the AAT considered that evidence to be irrelevant because it took a different view of its task to that I have explained at [19]-[26]. Conversely, did the AAT dismiss the evidence? If it did the latter, why was the evidence dismissed?
38 Nor is it clear from the AAT's reasons whether the AAT regarded each of the non-war caused factors it identified as causative on its own or whether it found that the combination of one factor with some or all of the other non war-caused factors prevented Mr Willis from working.
39 Additionally, it is to be recalled that the AAT identified four types of remunerative work which had been previously undertaken by Mr Willis. The types of work identified by the AAT are somewhat diverse and call for different capacities from an employee or a self-employed worker. Did the AAT regard each non-war factor it identified as preventing Mr Willis from working in each type of work that Mr Willis had previously performed? To give an example to illustrate the lack of explanation provided, was Mr Willis's limitation in walking long distances a factor which the AAT regarded as preventing him (either alone or in combination) from working as a foreman, a process worker or as a handyman? If so, why? What evidence supported such a conclusion? By way of further illustration, did the findings that Mr Willis lacked education and was unable to use computers contribute to the conclusion that Mr Willis was prevented from working as a labourer? If so, what was the evidence upon which the AAT relied which supported such a conclusion?
40 The reasons for decision of the AAT failed to explain the connection between the findings made by the AAT that a particular factor (or factors) prevented Mr Willis from working, with the type of work which the AAT regarded Mr Willis had been prevented from performing. It is therefore not possible to discern from the reasons given the attribution accorded to each such factor in relation to the assessment made as to each of the types of work which Mr Willis had formerly undertaken. Whatever attribution was accorded by the AAT must have been based on underlying facts regarded by it as supportive of the conclusion that the particular factor identified was causative in preventing the particular type of employment. But those underlying or primary facts are not stated at all, not even in the most cursory fashion. How the AAT dealt with evidence before it which was relevant to the conclusions expressed at [39] is not explained.
41 Whilst the Repatriation Commission conceded that there is a difficulty with the rolled up approach of the AAT in addressing at [39] of its decision, in a global way, all of the different types of work, the Commission contended that though of short form, the reasons were adequate in circumstances where much of what the AAT relied upon was "admitted" by the evidence given by Mr Willis.
42 I accept that where what is at issue, is not the subject of controversy, the determination of that issue is unlikely to require explanation. However, I do not accept that insofar as Mr Willis gave evidence which supports the conclusions expressed by the Tribunal at [39], he did so by way of an admission or so as to remove the issue concerned from controversy. To give an example, Mr Willis gave evidence that there was not a great deal of work as a farm hand in his area. But the issue as to whether work as a labourer on a farm was potentially available to a healthy person in Mr Willis's circumstances was not confined to that evidence.
43 Evidence about Mr Willis's work as a farm labourer and his prospects of obtaining such work was given by a Mr Cunningham. Mr Cunningham had used Mr Willis as a farmhand on an intermittent and periodic basis over the prior six or seven years whilst Mr Willis lived in a cottage on his dairy farm. In the periods when Mr Willis was able to work, Mr Willis worked one or two hours a day. The types of duties he performed ranged from tending vegetables, driving a truck on the farm and distributing hay or other feed to cattle and pigs. Mr Cunningham thought that when Mr Willis's mental state was good, Mr Willis could perform light duties in an excellent manner. In those circumstances, he could do a lot of work on Mr Cunningham's farm and could perform similar work for other farmers in the district. Mr Cunningham believed that there was a demand in his area for a reliable worker performing agricultural labour. The evidence of Mr Willis about the low demand for farm labourers was put to Mr Cunningham. He accepted that the demand was dwindling in the immediate area because of the prevalence of hobby farms, but that in the general area (within a 40 minute drive) he thought work was available for part-time farm labourers. He had employed a part-time farmhand himself who had taken over many of the tasks previously performed by Mr Willis.
44 How the AAT dealt with that evidence is not explained by its reasons. The issue was of sufficient significance to warrant at least a rudimentary explanation as to why the issue was lost by Mr Willis.
45 In my view, the AAT's reasons failed to provide a sufficient explanation of the conclusions the AAT reached at [39] of its decision. There is a failure to identify findings of fact which underlie those conclusions, including a failure to explain the evidence accepted or rejected. There is also a failure to expose the reasoning process which led to the conclusions reached in a manner sufficient to enable the parties and the Court to understand the AAT's reasoning. I am satisfied that, in this respect, legal error is established.
46 The AAT reasons also failed to adequately expose its reasoning in relation to the second element of s 24(1)(c) which deals with the requisite nexus between the war-caused incapacity and the veteran suffering a loss of salary, wages or a loss of earnings on his or her account. The test propounded by this element of s 24(1)(c) is to be construed by reference to the provisions contained in s 24(2)(a), as the opening words of s 24(2) say.
47 The only part of the AAT's decision which appears to deal with this second element of s 24(1)(c) is [40] of the decision. That paragraph contains three findings of fact followed by a finding "that Mr Willis fails to satisfy s 24(2)(a) of the Act". No reference is made to s 24(1)(c) or the terms of s 24(2)(a). No reference is made to the task required of the AAT in addressing this element.
48 The factual findings which are stated, address why Mr Willis ceased work in a particular position, why his attempts to work as a gardener were hampered, and that Mr Willis had received a disability pension for more than a decade.
49 The relevance of those factual findings to the test raised by the second element of s 24(1)(c) and the reasoning which led to the AAT's conclusion, is neither expressed nor apparent. It may well be that the AAT was working under the misapprehension that s 24(2)(a)(i) and (ii) are addressing the reason why the last remunerative position held by the veteran came to an end, rather than addressing why the veteran ceased to be engaged in the type of remunerative work that the veteran had been undertaking: see [29] above.