[2013] AATA 80
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4499
Re
GRAEME McDONALD
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 19 February 2013 Place Brisbane The Tribunal affirms the decision under review.
...................[Sgd].....................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Application of Statement of Principles – No diagnosis of posttraumatic stress disorder in relation to an event on service – Condition not war-caused – Decision under review affirmed.
LEGISLATION
Administrative Appeal Tribunal Act 1975 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 120
CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Budworth v Repatriation Commission (2001) 116 FCR 200
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stoddart (2003) 77 ALD 67
Re Budworth and Repatriation Commission [2000] AATA 127
Re McDonald and Repatriation Commission [2012] AATA 344
Re Newton and Repatriation Commission [2009] AATA 485
Re Trigge and Repatriation Commission [2012] AATA 176
Woodward v Repatriation Commission (2003) 131 FCR 473; (2003) 75 ALD 420; [2003] FCAFC 160REASONS FOR DECISION
Mr R G Kenny, Senior Member
19 February 2013
BACKGROUND
On 6 May 2011, Graeme McDonald, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability support pension for “posttraumatic stress disorder”. He contended that this was related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.
On 3 June 2011, the respondent determined that Mr McDonald’s posttraumatic stress disorder was not related to his service. That decision was affirmed by the Veterans’ Review Board (“the Board”) on 5 October 2011 and by the Administrative Appeals Tribunal (“the Tribunal”) on 7 June 2012. By consent, the Federal Court, on 11 September 2012, set aside the Tribunal decision and remitted the matter to the Tribunal to be heard and decided again. While the applicant’s notice of appeal to the Federal Court referred to other matters, the only agreed matter which provided the basis for the consent order was identified by the parties as:
The Tribunal found against the applicant, at step 4 of the Deledeo process, on the basis that the applicant “did not come face to face with an actual peril or threat thereof”. That approach is contrary to the approach taken by the Court in Border and Stoddart which focusses attention on the effect of the event, and the veteran’s perception of the event, not the (objective nature of the) threat itself.
SUBMISSIONS
Mr Matt Black, for Mr McDonald, submitted that the first task of the Tribunal on remittal was to determine, on the balance of probabilities, whether the diagnostic criteria for posttraumatic stress disorder were…
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- Case
- [2013] AATA 80
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CaseChat Overview and Summary
The primary legal issue before the tribunal was whether Mr McDonald's condition could be diagnosed as PTSD and, if so, whether it arose out of or was attributable to his service in the war. This required the tribunal to examine the evidence of the traumatic incident at Vung Tau and determine if it could be classified as a war-related event that caused the condition. The tribunal also had to consider the application of the Statement of Principles concerning PTSD and whether it could be diagnosed based on the incident in question. Additionally, the tribunal had to interpret the relevant legislative provisions, particularly sections 7, 6C, and 9(1)(b) of the Act, to ascertain if Mr McDonald's condition could be classified as war-caused.
The tribunal concluded that since a diagnosis of PTSD in relation to the incident could not be made, it was satisfied beyond reasonable doubt that the condition was not war-caused. The tribunal found that the events described by Mr McDonald did not align with the necessary criteria for a PTSD diagnosis. They also determined that the witness, Dr Anderson, had not been adequately tested on issues related to Mr McDonald's perceptions at the time of the incident. Both parties conceded that the matter could be resolved on remittal without further evidence from Dr Anderson. The tribunal affirmed the original decision under review, finding that the condition was not attributable to Mr McDonald's war service.
The tribunal's decision was affirmed, and no further appeal was entertained on the matter. The tribunal's reasoning was based on the inability to diagnose PTSD in relation to the incident, which led to the conclusion that the condition was not war-caused.
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
Ratio Decidendi
Legal Principle Established
The Tribunal went on, in considering causation, to determine that the events identified by Dr Anderson had not occurred in the manner he described and, for that reason, the Tribunal was satisfied beyond reasonable doubt the condition was not war-caused. Mr Black submitted and Mr Hanson agreed that Dr Anderson had not been tested on issues relating to Mr McDonald’s perceptions at the time of the incident at Vung Tau but both accepted that the matter could be resolved on remittal without calling Dr Anderson to give further evidence. CONSIDERATION Neither Mr Black nor Mr Hanson challenged the manner in which the Tribunal, in its reasons for decision after the original hearing, set out the evidence or its findings of fact. The relevant evidence is not repeated here save for the following summary: Mr McDonald completed basic training in Australia and, as a musician, he was involved in Band duties as a percussionist. The Band toured South Vietnam for two weeks performing in parades and concerts. They travelled to venues with an armed Land Rover escort during which Mr McDonald was apprehensive at being so exposed to possible enemy contact. One of their billets was subjected to mortar fire on the day after they departed it. He felt exposed during concerts due to the prospect of someone “taking a shot” at the band members. At an open air concert at Vung Tau, Mr McDonald heard a gunshot and saw smoke, accompanied by a “big crowd reaction” involving “screaming”. He then heard that someone had been shot though he did not see a body, but learned subsequently that there had been a killing. Mr McDonald felt that his life was threatened and he described the experience as “pretty terrifying” because he and the other Band members were so exposed and unarmed. In a statement, Mr McDonald wrote that “a suspected [Viet Cong] was shot in front of the Band” by the “white mice”, the name for local policemen. He heard “at least one loud bang” and “saw some wispy smoke”, heard “screams” and “witnessed agitated crowd movement”. It is not disputed that McDonald rendered eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act, respectively, from 16 September 1970 until 1 October 1970. This included the concert tour in Vietnam. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”. Since the Tribunal’s decision, the Full Court of the Federal Court has confirmed the view that posttraumatic stress disorder can only be diagnosed as an illness or disease in terms of a traumatic event and that, if the decision-maker is not satisfied on the balance of probabilities in accordance with s 120(4) of the Act, that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of posttraumatic stress disorder.[4] The Court said:[5]In our respectful opinion, the effect of the settled course of judicial authority is that a veteran is entitled to have that aspect of a claim for PTSD concerned with whether it was war-caused dealt with in accordance with the four-step process explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) only if it is established on the balance of probabilities that the veteran does in fact suffer from incapacity from that injury or disease: Budworth (2001) 116 FCR 200 at [19].[4] See Repatriation Commission v Bawden [2012] FCAFC 176.[5] Above at [40].