Gilbert and Repatriation Commission
[2005] AATA 816
•25 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 816
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/957
VETERANS' APPEALS DIVISION )
Re ALAN GILBERT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date25 August 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................... .[Sgd]......................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS –Veteran’s Entitlement Act – Depressive disorder – operational service aboard HMAS Sydney – war caused injury during eligible service – no causative link between perceived loss of friends during war and Statement of Principles - Deledio applied – decision under review affirmed
Veterans’ Entitlements Act 1986 ss 119, 120, 196B
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Browne v Dunn (1893) 6 R 67 (HL)
Bull v Repatriation Commission [2001] FCA 1832
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Fenner v Repatriation Commission [2005] FCA 27
Grundman v Repatriation Commission [2001] FCA 892 and [33]; (2001) 66 ALD 125
Haughey and Repatriation Commission [2005] AATA 189
Hill v Repatriation Commission [2005] FCAFC 23
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Levi v Colgate Palmolive Pty Ltd (1941) 41 SR (NSW) 48
Mines v Repatriation Commission [2004] FCA 1331
Morgan v Repatriation Commission [2005] AATA 458
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383,
Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153 at [46]; (2003) 74 ALD 37
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Re Hillier and Repatriation Commission [2004] AATA 897
Re Williamson and Repatriation Commission [2004] AATA 1185 at [56] – [59]).
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 38 AAR 176
Schmidt v Repatriation Commission [2004] FCA 1158 at [5]
Secretary, Department of Social Security v Murphy [1998] 809 FCA
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission [2003] FCAFC 160REASONS FOR DECISION
Mr SC Fisher, Member 25 August 2005
Introduction And Background
1. Mr Allan Phillip Gilbert (the Applicant) served in the Royal Australian Navy from 30 June 1961 until 29 June 1970.
2. The Applicant rendered operational service on board the HMAS Sydney as the Captain’s Valet on 12 occasions when this ship was used in taking troops, equipment and supplies from Australia to South Vietnam between 8 April 1967 and 5 March 1970 in Sydney. The Applicant also has an earlier period of operational service on board the HMAS Melbourne from 31 May 1965 to 22 June 1965.
Jurisdiction
3. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision Under Review
4. The decision under review is a decision made by the Repatriation Commission (the Respondent) dated 15 March 2000 where the Respondent determined that the conditions of Depressive Disorder and Alcohol Dependence or Abuse are not service-related conditions.
5. On 14 February 2003 the Veterans’ Review Board affirmed the decision of the Respondent in relation to Depressive Disorder, and consented to the withdrawal of the claim for Alcohol Dependence or Abuse under section 155(1) of the Act.
The Role Of The Tribunal
6. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] 809 FCA). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
7. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veteran’s pensions and related entitlements.
The Material Before The Tribunal
8. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2Transcript of the 14 February 2003 hearing before the Veterans’ Review Board.
Exhibit 3Medical report from Dr Ashim Mujumdar dated 4 August 2004.
Exhibit 3ASupplementary medical report from Dr Ashim Mujumdar dated 8 March 2005.
Exhibit 4Applicant's Statement of Facts and Contentions dated 21 January 2005.
Exhibit 5Applicant's Amended Statement of Facts and Contentions dated 1 March 2005.
Exhibit 6Psychological Records of Allan Phillip Gilbert.
Exhibit 7Record of Service of Allan Phillip Gilbert.
Exhibit 8Respondent's Statement of Facts and Contentions dated 9 March 2005.
9. The Applicant was represented by Mr P Canning of counsel. Mr Canning was instructed by Sciaccas’ Lawyers and Consultants. Exhibits 1 – 5 were lodged on behalf of the Applicant.
10. The Respondent lodged documents T1 to T4 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. Exhibits 6 – 8 were lodged on behalf of the Respondent.
11. The Respondent was represented by Mr Jeff Kelly a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
12. The Applicant lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence For The Applicant
13. The following people gave evidence on behalf of the Applicant: the Applicant, Dr TH Gidley, Psychiatrist and Dr Ashim Majumdar, Psychiatrist.
Evidence of the Applicant
14. The Applicant gave evidence in person to the Tribunal. No witness statements were tendered on behalf of the Applicant to the Tribunal. A summary of what the Applicant said to the Tribunal is set out next:
- The Applicant summarised his service history between 1961 and 1970.
B.The Applicant said that he made 13 trips to Vietnam, 12 of these being on the HMAS Sydney where he served as the Captain’s Valet to Captain Clark. The Applicant said that these were the only duties he performed on the HMAS Sydney.
C.The Applicant said that he had an "excellent time" with the Navy, and that the service was "brilliant", and that he "thoroughly enjoyed" his time in the Navy.
D.The Applicant described the activities of the HMAS Sydney in discharging troops and cargo at Vung Tau Harbour in South Vietnam.
E.The Applicant said that when the HMAS Sydney was berthed at Vung Tau Harbour, the vessel was at "action stations".
F.The Applicant said that the Captain had informed him that the ship could be attacked from any of mortar fire, limpet mines and mines accompanying flotsam.
G.The Applicant said that he had a very close relationship with the Captain and his wife to the point that he described it as a "love relationship". The Applicant said that the Captain and his wife provided him with a lot of support during his time in the Navy.
H.The Applicant said that his relationship with the crew on the HMAS Sydney was "very good", but that he did not have a lot of contact with crew members except in his participation in athletic competitions where the Applicant had excelled.
I.The Applicant said that he was "ridiculed" by fellow crew members because of his duties as the Captain's Valet, where he to do things like carry crockery and silver. The Applicant said that at times he was called a "poofter" by some crew members.
J.The Applicant described an incident called the "friendship incident" which took place on his fourth trip to Vietnam on the HMAS Sydney (and his fifth trip overall) between 20 December 1967 and 3 January 1968. He had been instructed to get involved in on-board sporting activities conducted between Navy and Army personnel.
K.The Applicant said that he befriended three soldiers in particular whose names he could not recall specifically (although names such as "Midgie" and "Dacko” were mentioned in cross-examination).
L.The Applicant said that he won the 1 mile race. The Applicant said that the attitude of the soldiers to him changed after that event.
M.The Applicant said that he and the three soldiers promised to write to each other, which he did but did not receive a reply from any of them. The Applicant said that he made three attempts to do so, and that the Captain would not allow the Applicant to go ashore to find the three soldiers in question. In cross-examination, the Applicant said tearfully that "they’re dead".
N.The Applicant said that on his sixth trip, he began to have nightmares. The nightmares consisted of three shrunken heads been given to him in a box, and the heads were of the three soldiers he had befriended. The Applicant said that he told a Petty Officer of his nightmares during his time in the Navy. The Applicant said that he had nightmares once or twice each week.
O.The Applicant described his post-Navy life, and the difficulties he had encountered in operating businesses in the field of hospitality, some of which had failed because of his health problems.
P.The Applicant described several traumatic events in his post-Navy life, including the failure of his marriage and the death of his parents, in particular having nursed his mother and also her sister who died through terminal illnesses.
15. The Tribunal noted that the Applicant broke down several times while giving evidence, adjourning the hearing at one point to allow the Applicant to compose himself and continue giving evidence. The Tribunal accepted the Applicant as a witness of truth. His credit was not at all impugned in the hearing of this case.
Evidence of Dr Terrence Herbert Gidley
16. Dr Terrence Herbert Gidley, Consultant Psychiatrist, gave evidence on behalf of the Applicant. Dr Gidley provided a medical report dated 16 June 2002, which was part of Exhibit 1 (this report was, however, addressed to the Respondent). The nub of the evidence provided by Dr Gidley to the Tribunal was as follows:
- Dr Gidley examined the Applicant on 27 March 2002.
B.Dr Gidley said that the relevant factor in the SoP was Factor 5(b).
C.Dr Gidley said that the separation of the Applicant from the three soldiers he befriended represented a loss to him. Dr Gidley said that the Applicant felt guilty because he had beaten the soldiers in the mini-Olympics, and that the loss came home to him when his correspondence to the three soldiers he had befriended was not answered. In the case of the Applicant, it was his perception of loss that matter.
D.Dr Gidley said that the sensitive nature of the Applicant predisposed him to suffering depression.
E.Dr Gidley said that there was no change to his opinion if the HMAS Sydney had been or had not been under fire.
F.Dr Gidley rejected a diagnosis of post traumatic stress disorder because the applicant had not been exposed any severe stressor.
G.Dr Gidley diagnosed depressive disorder in the Applicant, which had both a biological basis and environmental basis. These two bases combined to cause the depressive disorder the Applicant suffered.
H.In cross-examination, Dr Gidley says that the one-week relationship the Applicant forged with the three soldiers was not akin to divorce or separation.
I.In cross-examination, Dr Gidley said that the subjective response of the Applicant to his sense of loss from the friendship incident was very important to him.
J.In his 16 June 2002 report, Dr Gidley presented a diagnosis of Major Depressive Disorder -- Recurrent. Dr Gidley a rejected a diagnosis of Post Traumatic Stress Disorder because the stress or trigger of the friendship incident involving the concern the Applicant held about the death of the three soldiers he befriended related to a possibility rather than an actual event.
K.In his 16 June 2002 report, Dr Gidley indicated that the Major Depressive Disorder -- Recurrent suffered by the Applicant onset within one to two years post-discharge. Dr Gidley connected this condition with the operational service rendered by the Applicant.
Evidence of Dr Ashim Majumdar
17. Dr Ashim Majumdar, Psychiatrist gave evidence on behalf of the Applicant. Dr Majumdar authored two medical reports, one dated 4 August 2004 (Exhibit 3) and a shorter, follow-up report dated 8 March 2005 (Exhibit 3A). The evidence of Dr Majumdar to the Tribunal is summarised as follows:
- Dr Majumdar said that there were two severe psychosocial stressors the Applicant experienced, the first being the perception of loss of the three soldiers he had befriended, and the second was advice from the Captain of the HMAS Sydney that the ship could be attacked.
B.In relation to the definition of a psychosocial stressor from the depressive disorder SoP, Dr Majumdar said that the events described in the definition were different to the separation of Applicant from his three soldier friends and his perception of loss when he lost contact with them.
C.Dr Majumdar said that the friendship incident could cause a severe psychosocial stressor in the Applicant.
D.In cross-examination, Dr Majumdar said that the perception of loss of his three friends was akin to a severe psychosocial stressor, and that it was the subjective perception that mattered in the case of the Applicant.
18. In the 4 August 2004 medical report, Dr Majumdar said that the perceived loss of his three friends in combat was a severe psychosocial stressor for the Applicant. Dr Majumdar identified the second stressor, namely advice from the Captain that the HMAS Sydney could be attacked, which caused stress and insecure feelings of the Applicant. Factor 5(b) of the depressive disorder SoP was applicable to the Applicant and satisfied in his case. Dr Majumdar discounted genetic factors, a vulnerable personality or other stressors. Dr Majumdar said that the major depressive disorder began on the Applicant's sixth trip to Vietnam, and then gradually became worse to the point of becoming chronic.
Discussion of the medical evidence
19. The medical evidence before the Tribunal clearly favours a diagnosis of the depressive disorder. Both Dr Gidley and Dr Majumdar attributed the depressive disorder to the Vietnam service of the Applicant, and to his perception of loss stemming from lost contact with the three soldiers he befriended on the HMAS Sydney. In addition, Dr Majumdar attributed the depressive disorder to advice from the Captain to the Applicant of the possibility of the HMAS Sydney coming under attack, which the Applicant also mentioned in his evidence to the Tribunal. Dr Gidley connected the onset of depressive disorder to 1 – 2 years post-discharge. Dr Majumdar said that the symptoms of depressive disorder began during the Naval service of the Applicant.
20. The one key difference between the evidence of Dr Gidley and Dr Majumdar and says the contribution to the depressive disorder of the Applicant by constitutional or genetic factors. Dr Gidley said, in effect, that the Naval experience of the Applicant was an overlay of a sensitive personality. Dr Majumdar discounted this contribution. In the end, in the opinion of the Tribunal, this difference of medical opinion is not critical or decisive. Both Psychiatrists attribute the Naval service of the Applicant, being operational service, as the major cause of the depressive disorder suffered by the Applicant.
Evidence for the Respondent
21. The Respondent did not call any evidence.
Issue
22. The only issue agitated in this case is whether the depressive disorder suffered by the Applicant is war-caused within the meaning of section 9 of the Act.
Applicant’s Submissions
23. The submissions of the Applicant fell into two main categories. The first category was that the Veterans’ Review Board had erred in finding that there was insufficient evidence pointing to a clinical onset of the depressive disorder either during service or within two years afterwards. The Applicant contended that the medical evidence adduced by the Applicant for the Veterans’ Review Board was unchallenged, that the Veterans’ Review Board had erred in making a determination of insufficient evidence because such a finding necessarily implied that the Applicant was under an evidential burden to prove his case (which is inconsistent with section 120(6) of the Act, and that the Veterans’ Review Board breached its duty to accord procedural fairness to the Applicant on the medical evidence issue. The Applicant contended, citing Fenner v Repatriation Commission [2005] FCA 27, that the rule in Browne v Dunn(1893) 6 R 67 (HL) applied to the hearing before the Veterans’ Review Board, and so that Board should not have made a finding of fact contrary to unchallenged medical evidence, leading to the conclusion that the Veterans’ Review Board decision was in error and should be set aside.
24. The second category of the submissions of the Applicant centred upon the finding of the Veterans’ Review Board that the possible severe stressor from the friendship incident was not an identifiable occurrence within the relevant SoP. The Applicant contended that the Veterans’ Review Board incorrectly applied the Repatriation Commission v Deledio test ((1998) 83 FCR 82) in that it prematurely evaluated material supporting the hypothesis and incorrectly applied section 120(1) of the Act. The Applicant contended further that Fenner v Repatriation Commission [2005] FCA 27 at [80] indicated that the vulnerability of the HMAS Sydney to attack from enemy forces should have formed part of the question framed by the Veterans’ Review Board in determining whether the reasonable hypothesis existed or not.
25. In oral submissions, the Applicant contended that White v Repatriation Commission[2004] FCA 633 supported the construction of the events described by the Applicant as constituting severe psychosocial stress source as identifiable occurrences. The Applicant referred to the "egg-shell skull rule" in support of the contention that the Respondent had to take the Applicant as it found him, including any predisposition the Applicant might have to depressive disorder.
Respondent’s Submissions
26. The statement of facts and contentions of the Respondent took issue with two claimed events as constituting identifiable occurrences within the SoP for depressive disorder. The first was whether the inability of the Applicant to obtain work as a clearance diver was a severe psychosocial stressor. The second was whether the friendship incident also constituted a severe psychosocial stressor. The Respondent contended that neither event constituted an identifiable occurrence within the scheme of the SoP. In the alternative, the Respondent contended that even if these events were identifiable occurrences, they fell short of constituting a severe psychosocial stressor in the SoP.
27. In oral submissions, the Respondent contended that none of the events reported by the Applicant constituted identifiable occurrences within the scheme of the SoP. The Respondent disputed the two-year clinical onset nexus required by the SoP on the basis of the evidence before the Tribunal. The Respondent contended that the idea of divorce and separation as mentioned in the definition of severe psychosocial stressor in the SoP referred to divorce or separation in a matrimonial context and not to separation of the Applicant from the three soldiers he befriended. The Respondent conceded within the objective/subjective dichotomy sanctioned by White v Repatriation Commission[2004] FCA 633 that the Applicant satisfied the subjective limb of the severe psychosocial stressor element, but disputed whether it amounted to a severe psychosocial stressor in the objective plane. Re Hillier and Repatriation Commission [2004] AATA 897, White v Repatriation Commission [2004] FCA 633 and Repatriation Commission v Stoddart[2003] FCAFC 300; (2003) 38 AAR 176 were cited to the effect that an identifiable occurrence had satisfied both subjective and objective criterion, and that the idiosyncratic or personal perceptions of the Applicant was only part of the relevant test the Tribunal had to follow to determine whether or not an identifiable occurrence could fall within the meaning of a severe psychosocial stressor in the SoP.
Findings of Fact
28. Based upon the material before the Tribunal, the Tribunal makes the following findings of fact:
- Mr Allan Phillip Gilbert (the Applicant) was born on 16 March 1942.
B.The Applicant served with the Royal Australian Navy from 30 June 1961 until 29 June 1970.
C.The Applicant rendered operational service on board the HMAS Sydney as the Captain’s Valet on 12 trips between Australia and South Vietnam between April 1967 and March 1970.
D.The Applicant was informed that the HMAS Sydney could be subjected to enemy fire when berthed at Vung Tau Harbour, South Vietnam.
E.The Applicant befriended three soldiers leading up to operational service between 20 December 1967 to 3 January 1968, and despite a pledge between the four personnel to remain in contact with each other, the Applicant did not receive any letters or other correspondence from the three soldiers. Attempts made by the Applicant to obtain news about the safety or well-being of the three soldiers were unsuccessful, and this led him to believe that they were killed in action, which caused him substantial distress.
F.The Applicant began to suffer symptoms of depression during his naval service.
G.The Applicant suffers from a depressive disorder.
29. For reasons that will appear later in this Reasons for Decision, the critical incident on which the Applicant relies to establish the relevant nexus between his operational service and his depressive disorder condition is the event in which he failed to receive news about the three soldiers he befriended on a voyage of the HMAS Sydney from Australia to South Vietnam leading up to his operational service between 20 December 1967 to 3 January 1968. For brevity, this will be described as the "friendship incident".
The Legislation
30. The standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is “war-caused” where a claim relates to operational service is found in sections 120(1) and (3) of the Act.
31. In Repatriation Commission v Stoddart [2003] FCAFC 300 the Court clarified the operation of these sections, after referring to the decision of the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564. The Full Court in Stoddartsaid at [12]:
In substance, the appellant is required to find that a disease is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. It is directed to be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the operational service of the applicant.”
32. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant Statements of Principles (SoPs) devised by the Repatriation Medical Authority.
33. In cases such as the present, the approach for decision makers is guided by the decision of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Before the Tribunal proceeds to the Deledio approach, it must be satisfied (to a standard of reasonable satisfaction) the Applicant suffers from a medical condition.
34. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
35. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of chronic bronchitis and emphysema pursuant to section 196B(2) of the Act. Section 120A of the Act says the reasonableness of the hypotheses must be assessed against the relevant SoPs. A SoP is brought into existence in order to comply with section 196B of the Act: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. There were no determinations of the Repatriation Commission under subsection 180A(2) of the Act that are relevant to this case, and the parties did not contend to that effect.
36. Section 196B(14) of the Act sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
“196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
Tribunal’s Reasons
37. The Tribunal proceeded as follows.
Diagnosis
38. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act. On the basis of the medical opinions before the Tribunal, the Tribunal is satisfied the Applicant suffers from depression. A diagnosis of PTSD is more problematic because it requires a “severe stressor”, and it is not indicated on the medical evidence before the Tribunal.
The Deledio steps
39. In Delediothe Full Federal Court summarised (at 97-98) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“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 a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.”
40. The Full Court of the Federal Court made a correction to the second sentence of the above formulation in Bull v Repatriation Commission [2001] FCA 1832 at [14]; (2001) 34 AAR 326 at 330: see Fenner v Repatriation Commission [2005] FCA 27 at [13]. This correction is not material to the present appeal.
41. Despite occasional deviations (see Hill v Repatriation Commission [2005] FCAFC 23) the four step Deledio template continues to be normative in veterans’ jurisprudence, and it will be followed in this case consistent with the constant and consistent stream of authority in this domain. The Tribunal noted that the four step Deledio template is cumulative, that is to say it is necessary to satisfy each of the four steps if a veteran's claim is to be accepted as war-caused within the meaning of the Act.
The Mines Preliminary Step
42. In Mines v Repatriation Commission [2004] FCA 1331, Gray J made these important observations about the Deledioreasoning process:
“[37] …The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
Gray J went on to say -
“[38] …Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” …
This concludes the preliminary or antecedent investigation before the first Deledio step is applied.
43. Before the well-known Deledio framework is applied, it is necessary to make a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service: see Mines v Repatriation Commission [2004] FCA 1331 at [37]. These two preliminary findings provide the gateway into the Deledio framework of analysis. In this case, the Tribunal is satisfied that the Applicant has a medical condition in the nature of a mental ailment, disorder, defect or morbid condition within the meaning of "disease" in section 5D of the Act, namely the depressive disorder. The Tribunal is satisfied also that the Applicant rendered operational service in an operational area as determined by applying sections 5B, 6D and Schedule 2, Item 4.
Application Of The Law To The Injury Alleged To Be War-caused
The first Deledio step
44. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the injury to the service rendered. The Applicant's contention is that his depression is related to service.
45. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 at 490 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g) (see also Fenner v Repatriation Commission [2005] FCA 27 at [26] – [ 29], citing Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153 at [46]; (2003) 74 ALD 37 at 43 per Jacobsen J. and Grundman v Repatriation Commission [2001] FCA 892 at [33]; (2001) 66 ALD 125 at 135 per Gray J). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
46. Based upon the evidence before the Tribunal, the Tribunal is satisfied that there is a hypothesis linking the Applicant’s depressive disorder with his operational service. In particular, the hypothesis arises from the service-related onset of the depressive disorder. The evidence discloses that the initial symptoms of depression, including nightmares, began during a subsequent voyage of the Applicant on board the HMAS Sydney after the friendship incident which took place in the lead up to the period between 20 December 1967 and 3 January 1968 (the actual period of operational service of the Applicant which appears to be the genesis of the Applicant's medical condition of depressive disorder).
The Second Deledio Step
47. The second Deledio step is to determine the relevant SoP. In this case, the relevant SoPs is: Depressive Disorder (Instrument Number 58 of 1998).
The Third Deledio Step
48. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 36. The Tribunal cannot make findings of fact at this point.
49. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the Applicant's condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b) of the Act). The relationship to service must be one of the relationships prescribed in section 196B(14) of the Act: Haughey and Repatriation Commission [2005] AATA 189 at [63].
50. Relevant excerpts from the SoP for Depressive Disorder (Instrument No 58 of 1998) are set out next:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about depressive disorder and death from depressive disorder.
(b) For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A) the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i)major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii) dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
(iii) depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSM IV diagnostic criteria for other specific mood disorders,
attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
8. Definitions
“relevant service” means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
“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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
51. The parties did not contend that any other factor as mentioned in Clause 5 of the SoP was relevant. For itself, the Tribunal is not satisfied that the evidence triggered the application of any of the other factors laid out in Clause 5.
52. Clause 4 of the SoP requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that the Applicant has rendered “relevant service” within the meaning of clause 7 of the SoP. What is disputed (as was argued in effect by the Respondent) is whether the Applicant developed depressive disorder because of his operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of Instrument No 58 of 1998 does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker, and this determination depends upon the nature, quality and probative value of the relevant and admissible evidence before the Tribunal.
53. As the forensic debate in this case unfolded during the hearing, it was clear to the Tribunal that the critical issue in terms of applying the third Deledio step is whether the evidence before the Tribunal raises a reasonable hypothesis connecting the depressive disorder of the Applicant with his operational service. In order for the hypothesis to "fit" the template provided in the SoP, it has to be consistent with it in the sense that section 196B prescribes.
54. The chain of reasoning from SoP Instrument No 58 of 1998 is as follows. First, the veteran must suffer from depressive disorder. In this case, the Applicant clearly does. Secondly, the depressive disorder must stem from one of the Clause 5 factors. In this case, the parties were agreed that Clause 5(b) is relevant, and the Tribunal is satisfied that this was correct and, moreover, that none of the other factors mentioned in Clause 5 were relevant on the evidence before it. The Tribunal examines this matter more closely below. Thirdly, at least one of the Clause 5 factors must be related to any relevant service of the Applicant (see Clauses 4 and 6).
55. The Tribunal turns to examine Clause 5(b) more closely as foreshadowed above. One of the leading decisions on whether a person suffers a severe psychosocial stressor is White v Repatriation Commission [2004] FCA 633. This was a decision on the application of the SoP for generalised anxiety disorder, SoP No 1 of 2000, where the definition of "severe psychosocial stressor" is nearly identical with that in SoP Instrument No 58 of 1998 (the one difference is that SoP No 1 of 2000 uses the compound expression "major illness or injury" while SoP Instrument No 58 of 1998 uses the replacement expression "severe illness or injury"; this distinction is not relevant in the circumstances of this case).
56. In White v Repatriation Commission, Spender J reasoned as follows:
[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.
….
[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.
57. The parties disputed whether the friendship incident amounted to an "identifiable occurrence" within the definition of "severe psychosocial stressor" in the SoP. For its part, the Tribunal doubts whether the failure on the part of the Applicant to receive correspondence from or news concerning any of the three soldiers he befriended constitutes an "identifiable occurrence". The nature of the events particularised as severe psychosocial stressors are discrete happenings in the shape of specific external actions or events which happen to or somehow affect a person to the requisite degree (substantial distress). In the present case, the failure on the part of the Applicant to receive correspondence or news concerning any of the three soldiers he befriended such as to allay his fears about their well-being or safety is an omission rather than a positive act or event. There was no evidence at all before the Tribunal to suggest that, assuming the three soldiers were "close friends" within the definition of "severe psychosocial stressor", the Applicant received any news or reports of the death or serious injury to any of them (and this was not in fact contended by the Applicant).
58. Using the objective/subjective frame of reference mandated by White v Repatriation Commissionproduces the following reasoning. The Respondent conceded (correctly, in the opinion of the Tribunal) that subjectively the Applicant experienced a severe psychosocial stressor through the friendship incident. The Tribunal finds that the friendship incident did in fact cause substantial distress in the Applicant. But this is not enough. White v Repatriation Commissionalso requires that objectively, the friendship incident must amount to an identifiable occurrence which is capable of causing or inducing substantial distress (see [30]). For reasons given earlier, the Tribunal is not satisfied that this is the case. Another way of looking at the same issue is to examine its nature (which the objective/subjective frame of reference reasoning does in its essence). The nature of the friendship incident, objectively speaking, is that the Applicant hoped for positive or affirmative news of the safety or well-being of his three soldier friends to allay his fears about their safety or well-being. When this news did not materialise despite some efforts by the Applicant to obtain this news, he suffered substantial distress. Nothing happened to the Applicant that caused him substantial distress. This is not an identifiable occurrence, but rather the absence of an identifiable occurrence. Using the words of Spender J in White v Repatriation Commission, an event that is, objectively, trivial or innocuous cannot amount to a severe psychosocial stressor because otherwise this would, in effect, empty the definition of much of its meaning and purpose and elevate any identifiable occurrence to the status of a severe psychosocial stressor (so long as it induced or produced severe distress in an individual). This would also rob the definition of the quality or attribute of severity denoted by that adjective, and give the subjective element a far greater weight than the objective element which the Federal Court has ruled is embedded implicitly in the definition.
59. While the examples of identifiable occurrences in the definition of “severe psychosocial stressor” are just that, examples (which are not exhaustive but illustrative: Morgan v Repatriation Commission [2005] AATA 458 at [41]), the common thread to those identifiable occurrences is that they represent objectively significant or major events which evoke feelings of substantial distress in an individual. What has happened to the Applicant in this case does not satisfy the objective element of the definition, and so the reasonable hypothesis of a connection between the depressive disorder of the Applicant and his operational service is not made out. Nothing in section 119 can be relied upon by the Applicant to alter this conclusion.
60. The Tribunal accepts the argument of the Respondent that the reference to divorce or separation in the definition of “severe psychosocial stressor” is a reference to matrimonial or de facto divorce or separation, not social separation between non-relatives as occurred in this case.
61. The Tribunal accepts that, subjectively, the Applicant keenly felt the absence of news about his three friends, so much so that this caused him substantial distress. An appeal to the egg-shell skull rule (see Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Levi v Colgate Palmolive Pty Ltd(1941) 41 SR (NSW) 48 and Nader v Urban Transit Authority (NSW)(1985) 2 NSWLR 501) does not advance the case of the Applicant any further in this appeal where the underlying issue is not the predisposition or the susceptibility of the Applicant to injury (which was equivocal on the medical evidence before the Tribunal) but rather whether that objectively and subjectively, an identifiable occurrence caused substantial distress to the Applicant.
62. The second possible severe psychosocial stressor the Applicant experienced was advice to him while on board the HMAS Sydney that the ship could be attacked by the enemy while in Vung Tau Harbour. In terms of the forensic cut and thrust in this case, this second possible severe psychosocial stressor did not attract much comment from the parties. This advice, in the opinion of the Tribunal, is preliminary to an “identifiable occurrence” in the definition of “severe psychosocial stressor”. The common thread to those identifiable occurrences is that they represent objectively significant or major events which evoke feelings of substantial distress in an individual (see para 59 above). The SoP is quite different to the Instrument No 3 of 1999 for PTSD which uses the concepts of ‘experiencing a severe stressor’, part of which includes actual or threat of death or serious injury (see the discussion in Re Williamson and Repatriation Commission [2004] AATA 1185 at [56] – [59]). In that decision, this Tribunal said “While the examples of stressors given in the SoPs are not an exhaustive list, they do provide guidance as to the nature and level of intensity required by stressors.” The Tribunal considers that the nature and level of intensity of advice to the Applicant about the possibility of the enemy attack does not amount to an identifiable occurrence because it is too remote from and distinct from the class of events which are said to be illustrations of identifiable occurrences that amount to severe psychosocial stressors. In short, this stressor does not meet the threshold.
63. To sum up on the third Deledio step: the Tribunal is satisfied that in relation to the Applicant, based on the evidence before the Tribunal, it is not possible to fit or accommodate the circumstances of the Applicant to the template presented by the applicable SoP. Accordingly, the Tribunal is not reasonably satisfied that the hypothesis linking the condition of depressive disorder to operational service can be made out.
The Fourth Deledio Step: Findings of Fact
64. The Tribunal has determined that the condition of depressive disorder does not “fit” or is not consistent with the relevant SoP. Where the Tribunal is not satisfied beyond reasonable doubt that the incapacity or injury of the veteran was not war-caused, then the fourth Deledio step requires the Tribunal 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. In this case, the Tribunal is satisfied beyond reasonable doubt that the incapacity or injury of the Applicant is not war-caused; accordingly, the Tribunal does not proceed to make findings of fact in application of the fourth Deledio step.
Tribunal’s Conclusion
65. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decision is that Applicant’s condition of depressive disorder is not war-caused within section 9 of the Veterans’ Entitlements Act 1986.
Tribunal’s Decision
66. The Tribunal affirms the decision under review.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Jeff Mills
Legal Research OfficerDate of Hearing 14 April 2005
Date of Decision 25 August 2005Counsel for the Applicant Mr P Canning
Solicitor for the Applicant Sciaccas’ Lawyers and Consultants
For the Respondent Mr J Kelly, Departmental Advocate
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