Brian French and Repatriation Commission - [2012] AATA 415

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2010/2023

Veterans' Appeals Division )

Re: Brian French
Applicant

And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL:             Justice Kerr, President
DATE:   10 May 2016
PLACE:                  Sydney
In accordance with section 43AA of the Administrative Appeals Tribunal Act 1975, the decision dated 4 July 2012 is amended as follows:
The heading above paragraph 14 be deleted and replaced with “Does the material ‘point to’ a hypothesis connecting Mr French’s condition to service?”
In the last sentence in paragraph 27 delete the words “for 12 years”.
......................[sgd]..........................................
Justice Kerr, President.
French and Repatriation Commission [2012] AATA 415 (4 July 2012)

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/2023

Re

Brian French

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal
Senior Member A K Britton

Date 4 July 2012

Place Sydney
The decision under review is affirmed.
...............................[sgd].........................................
Senior Member A K Britton
Catchwords
VETERANS' ENTITLEMENTS - veteran suffered generalised anxiety disorder - whether war caused - material did not point to clinical onset within relevant period under SoP - satisfied beyond reasonable doubt that veteran did not experience clinical onset within relevant period - condition not war caused - decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth) - ss 13, 120, 120(4), 120A
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Hardman v Repatriation Commission [2005] FCAFC 83
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Re Bushell and Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47
Re Byrnes and Repatriation Commission (1993) 177 CLR 564; [1993] HCA 51
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Brady [2007] FCA 1087
REASONS FOR DECISION
Senior Member A K Britton

Mr Brian French served in the Royal Australian Navy from 4 January 1967 to 3 January 1979. He claims he now suffers from a “war-caused” psychiatric condition — “Generalised Anxiety Disorder”. Mr French seeks review of the decision made by the Repatriation Commission, affirmed on review by the Veterans’ Review Board, that this condition was not war-caused. The key issues to be determined in this review are whether, as claimed, Mr French suffers from a Generalised Anxiety Disorder and, if so, whether it was “war-caused”.
Does Mr French suffer from AN anxiety disorder?
The Commission’s original decision-maker found that Mr French suffered from an anxiety disorder. That decision was affirmed on internal review and by the Veterans’ Review Board. While Mr French does not challenge that conclusion, it forms part of the reviewable decision and therefore must be addressed. I must be reasonably satisfied that he suffers from the claimed condition (s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (the Act)).
Mr French contends that he suffers from a Generalised Anxiety Disorder (GAD) as defined by the Statement of Principles concerning Anxiety Disorder No.101 of 2007 (the SoP). The Commission disagrees. The SoP defines a GAD to mean:
… a psychiatric disorder…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 415
Decision Date: 4 July 2012

CaseChat Overview and Summary

Brian French, a veteran, challenged a decision by the Repatriation Commission denying his claim for compensation for a generalized anxiety disorder (GAD). The dispute was heard in the Federal Court of Australia. The central issue was whether Mr French's GAD was caused by his service during the relevant period under the applicable Statement of Principles (SoP). Specifically, the court needed to determine if the medical evidence indicated that Mr French's GAD had a clinical onset within five years of his service, as required by SoP1.

The court examined the definition of "clinical onset" of GAD as set out in the SoP and legal precedents. It found that clinical onset occurs when a person becomes aware of symptoms enabling a doctor to diagnose the disease or when an investigation confirms the disease's presence. The court held that Mr French's condition did not meet these criteria within the specified period. The evidence did not sufficiently point to a clinical onset of GAD within the timeframe necessary to establish a causal link to his war service. As a result, the court upheld the Repatriation Commission's decision, affirming that Mr French's GAD was not caused by his service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr French recalls witnessing two “man overboard” incidents while on board the HMAS Sydney. In the first, the man over board, an Ordinary Seaman, was retrieved by a passing freighter. In the second, Mr French was involved in the recovery operation and was present when the seaman was brought back on board “obviously in a bad way”.Conclusion I am satisfied that there is material which “points to” each of these incidents as described. For present purposes I will assume but not decide that the scare charge incident constitutes a Category 1A stressor and the Asian Worker and the Man Overboard incidents, Category 1B stressors. Is there material which points to clinical onset of GAD within five years of experiencing the stressor? The meaning of the term “clinical onset” was considered by the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331. Apparently endorsing the conclusion reached by the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668, the Court held (at 336-7) that there is clinical onset of a disease, when:·a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or·a finding is made on investigation which is indicative to a doctor that the disease is present. In Lees the Full Court held (at 337) that clinical onset will not be established if only some of the symptoms (or features) of GAD are present In relation to SoP1, the definition of “generalised anxiety disorder” does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is para C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. Mr French was unable to identify with precision when the claimed stressors occurred. For present purposes I will assume but not decide that each occurred sometime between the first and last day of operational service, i.e. 21 October 1970 to 16 October 1971. Adopting that approach, I must decide whether the material “points to” clinical onset of GAD within five years of that period, that is, 21 October 1970 to 16 October 1976 (the relevant period). In undertaking this task, I must have regard to “the whole of the material” (Re Bushell and Repatriation Commission (1992) 175 CLR 408 at 413; Re Byrnes and Repatriation Commission (1993) 177 CLR 564 (Byrnes) at 571).

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/2023
Re	Brian French
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member A K Britton
Date	4 July 2012
Place	Sydney