Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 220
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1538
VETERANS' APPEALS DIVISION ) Re GARY JAMES HARDMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Dr P D Lynch, Member
Rear Admiral A Horton, AO, MemberDate3 March 2004
PlaceSydney
Decision The tribunal affirms the decision under review. [sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – post traumatic stress disorder not war-caused – depressive disorder not war-caused – diabetes mellitus not war-caused – ischaemic heart disease not war-caused – reasonable hypothesis as standard of proof considered – hypothesis may be reasonable despite some adverse raised facts – satisfaction beyond reasonable doubt that disease not war-caused – special rate of pension not payable - diagnosis of post traumatic stress disorder valid where definition in relevant Statement of Principles not met –required causal factors in Statement of Principles apply to post traumatic stress disorder that does not meet Statement of Principles definition of the disease
Administrative Appeals Tribunal Act 1975 s 44(1)
Veterans’ Entitlements Act 1986 ss 5AB(2), 20(1), 23(1)(c), (3)(b), 24(1)(c), (2)(b), 120(1), (3), (4), 196B
Statement of Principles 3/99 as amended by 54/99 concerning post traumatic stress disorder
Statement of Principles 58/98 concerning depressive disorder
Statement of Principles 35/2003 concerning hypertension
Statement of Principles 58/2003 concerning ischaemic heart disease
Statement of Principles 82/99 as amended by 9/2001 and 91/2001 concerning diabetes mellitus
Benjamin v Repatriation Commission (2001) 34 AAR 270
Bey, Repatriation Commission v (1997) 79 FCR 365
Budworth v Repatriation Commission (2001) 63 ALD 422
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Chaney, Director-General of Social Services v (1980) 47 FCR 80
Cornelius v Repatriation Commission [2002] FCA 750
Deledio, Repatriation Commission v (1998) 49 ALD 193
East v Repatriation Commission (1987) 74 ALR 517
Edwards v R (1993) 178 CLR 193
Flentjar v Repatriation Commission (1997) 48 ALD 1
Fogarty v Repatriation Commission (2002) 36 AAR 307
Gosewinckel and Repatriation Commission, Re (AAT no 13412, 29 October 1998)
Gosewinckel, Repatriation Commission v (1999) 59 ALD 690
Green v R (1971) 126 CLR 28
Hardman and Repatriation Commission, Re; Re Repatriation Commission and Hardman [2000] AATA 318
Hendy, Repatriation Commission v [2002] FCAFC 424
Hunter and Repatriation Commission, Re (2002) 69 ALD 644
McKenna v Repatriation Commission (1999) 29 AAR 70
O’Brien, Repatriation Commission v (1984) 155 CLR 422
O’Neil v Repatriation Commission (2001) 34 AAR 290
Owen v Repatriation Commission (1995) 38 ALD 241
Owens, Repatriation Commission v (1996) 70 ALJR 904
Slattery and Repatriation Commission, Re (1998) 52 ALD 90
Smith, Repatriation Commission v (1987) 74 ALR 537
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
3 March 2004 Mr M J Sassella, Senior Member
Dr P D Lynch, Member
Rear Admiral A Horton, AO, MemberAPPLICATION
1. Mr Gary James Hardman (“the applicant”, “the veteran”), born 14 March 1947 (T4), applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a decision of a delegate of the Repatriation Commission (“the respondent”) dated 25 May 2001 which was affirmed on review by the Veterans’ Review Board (“the VRB”) on 24 September 2001. The decision was to reject the applicant’s claim for payment of Disability Pension under the Veterans’ Entitlements Act 1986 (“the Act”)[1] in respect of post-traumatic stress disorder, ischaemic heart disease and diabetes mellitus. He is in receipt of Disability Pension in respect of irritable bowel syndrome and bilateral sensori-neural hearing loss with bilateral tinnitus.
[1] tribunal convened a hearing in this application in Sydney on 13, 16 and 18 December 2002, and again on 18 December 2003. Mr Craig Colborne of counsel represented the applicant. Mr Philip Ginnane of counsel represented the respondent in 2002. He was succeeded by Senior Counsel Neil Williams and Ms Jayne Jagot of counsel on 18 December 2003.
3. The tribunal heard oral evidence from the applicant, Dr F Lumley (a psychiatrist), Mr P F Gallagher, Associate Professor C Quadrio (another psychiatrist), Commodore P M Mulcare (a researcher), Mr J R Graves JP, Mr R F Martin, Commander P Lyneham and Commander Vale.
4. The tribunal had access to, and took into evidence, the following documents:
Exhibit A1 – Section 37 Statement and associated documents (exhibits T1 – T70) provided by the respondent.
Exhibit A2 – Applicant’s statement of facts and contentions, 30 May 2002.
Exhibit A3 – Statement by the applicant, 16 November 1999.
Exhibit A4 – Page 225 of Grey, J, A Military History of Australia (Cambridge, Cambridge University Press).
Exhibit A5 – Pages xix-xx of Grey, J, Up Top: The Royal Australian Navy and Southeast Asian Conflicts 1955-1972 (Sydney, Allen & Unwin).
Exhibit A6 – Statement by Mr G Black, 22 August 1999.
Exhibit A7 – Report by Dr R Gertler (psychiatrist), 6 July 1999.
Exhibit A8 – Letter dated 17 February 1999 from Dibbs Crowther & Osborne to the Department of Veterans’ Affairs.
Exhibit A9 – Statement by Mr E Thirkell, 22 September 1999.
Exhibit A10 – VRB transcript, 15 January 1998.
Exhibit A11 – VRB transcript, 20 April 1998.
Exhibit A12 – VRB transcript, 11 November 1998.
Exhibit A13 – Report by Mr B G O’Keefe (historian), 15 March 2000.
Exhibit A14 – Report by Mr J Hambridge (psychologist), 12 January 2000.
Exhibit A15 – Report by Dr M Baz (occupational physician), 26 July 1999 (also T54).
Exhibit A16 – Photographs taken by the applicant.
Exhibit A17 – Item from the Sabah Times, 10 June 1965.
Exhibit A18 – Extract from thesis by Z B H Ahmad, The Police and Political Development in Malaysia: Change, Continuity and Institution-Building of a “Coercive” Apparatus in a Developing, Ethnically Divided Society (Massachusetts Institute of Technology, May 1977).
Exhibit A19 – Report by Dr E Lobel (dermatologist), 21 March 2000.
Exhibit A20 – Curriculum vitae of Mr B G O’Keefe.
Exhibit A21 – Statutory declaration of Mr J R Graves JP, 13 February 2002.
Exhibit A22 – Statutory declaration of Mr R F Martin, 27 February 2002.
Exhibit A23 – Statutory declaration of Mr K J McMiles, 25 January 2002.
Exhibit A24 – Copy of extracts from log book from HMAS Parramatta.
Exhibit R1 – Respondent’s amended statement of facts and contentions, 25 September 2002.
Exhibit R2 – Letter dated 9 July 1999 from Dibbs Crowther & Osborne to DVA.
Exhibit R3 – Wallsend Hospital clinical notes re the applicant.
Exhibit R4 – Medical record dated 8 December 1971 from HMAS Penguin.
Exhibit R5 – Letter dated 15 March 1972 from the applicant to the Captain, HMAS Penguin.
Exhibit R6 – Letter dated 24 May 1999 from Associate Professor J Grey to DVA.
Exhibit R7 – Letter dated 4 June 1999 from Associate Professor Grey to DVA.
Exhibit R8 – Department of Defence facsimile message to DVA, 9 March 1998.
Exhibit R9 – HMAS Parramatta Report of Proceedings, April 1965.
Exhibit R10 – HMAS Parramatta Report of Proceedings, May 1965 (also T33).
Exhibit R11 – Applicant’s service medical records.
Exhibit R12 – Letter dated 8 November 1999 from Associate Professor Grey to DVA.
Exhibit R13 - Letter dated 26 February 2000 from Associate Professor Grey to DVA.
Exhibit R14 – Extract from report by Associate Professor Grey, 29 March 2000.
Extract R15 – Map of Tawau and environs.
Exhibit R16 – Report by Associate Professor C Quadrio (psychiatrist), 29 November 2002.
Exhibit R17 – Report by Associate Professor Quadrio, 4 December 2002.
Exhibit R18 – Report by Dr R Haik (psychiatrist), 22 July 2002.
Exhibit R19 – Report by Dr Haik, 23 September 2002.
Exhibit R20 – Tribunal transcript, 3 December 1999.
Exhibit R21 – Tribunal transcript, 17 March 2000.
Exhibit R22 – Tribunal transcript, 3 April 2000.
Exhibit R23 – Report by Commodore Mulcare, 12 August 2002.
Exhibit R24 – Tribunal transcript, 24 September 2001.
Exhibit R25 – Photograph of HMAS Parramatta.
Exhibit R26 – Report by Commodore Mulcare, 14 December 2002.
Exhibit R27 – Copies of email communications between Commodore Mulcare and Lieutenant Commander P R Lyneham, 14 December 2002.
Exhibit R28 – Photograph of HMAS Parramatta or a sister ship.
Exhibit R29 – Instrument of Allotment, 3 May 2002.
Exhibit R30A – Letter dated 9 October 2002 from the Australian Government Solicitor’s office to Associate Professor Quadrio.
Exhibit R30B – Letter dated 3 December 2002 from the Australian Government Solicitor’s Office to Associate Professor Quadrio.
Exhibit R31 – Report by Professor M F O’Rourke (cardiologist), 11 June 2002.
Exhibit AH1 – Applicant’s written submissions, 24 January 2003.
Exhibit AH2 – Mr Martin’s handwritten statement.
Exhibit AH3 – Respondent’s written submissions, 28 January 2003.
Exhibit AH4 – Applicant’s submissions in reply, 4 February 2003.
Exhibit AH5 – Respondent’s submissions in reply, 4 February 2003.
5. The hearing did not conclude on 18 December 2002. The parties agreed to provide final submissions in writing. These arrived in January-February 2003. Exhibits AH1-AH5 are the post-hearing exhibits.
6. The status of this hearing was disputed as between the parties. Mr Colborne thought that agreement had been reached that, if it was accepted that Mr Hardman had war-caused post traumatic stress disorder, then diabetes mellitus and ischaemic heart disease were also war-caused diseases.
7. On 18 December 2002 Mr Colborne advised the tribunal that the applicant was seeking an interim decision (transcript, pages 4-5).
8. Mr Ginnane disagreed that such an agreement had been reached. These differences were reiterated in the written final submissions of counsel (ex AH1, ex AH3 and ex AH4). In ex AH3 Mr Ginnane opposed the making of an interim decision. He offered a number of practical and legal reasons against an interim decision. These included:
· An interim decision would not be a decision determining or disposing of the application for review.
· Neither party may have a right to appeal against an interim decision at the Federal Court where, according to the Administrative Appeals Tribunal Act 1975[2] s 44(1), and Director-General of Social Services v Chaney (1980) 47 FCR 80, the tribunal’s decision is not a final decision.
Mr Ginnane recommended that the hearing be resumed to consider diabetes and ischaemic heart disease.
[2] 17 April 2003 the Federal Court (Mansfield J) published its decision in Stoddart v Repatriation Commission (2003) 197 ALR 283. This decision clarified aspects of the requirements for a successful claim for a Disability Pension in respect of post-traumatic stress disorder. It had potential ramifications for the decision in the present case. The solicitors for both parties contacted the tribunal and it appeared fruitful to allow further submissions. It was intended that this would also permit finalisation of the outstanding issues concerning diabetes and ischaemic heart disease. On 31 July 2003 the full Federal Court published its decision in Woodward v Repatriation Commission (2003) 200 ALR 332, a decision in which it endorsed the decision in Stoddart (above). Thus it was that the tribunal reconvened on 18 December 2003, the first available date that suited all parties.
UNCONTROVERSIAL FINDINGS
10. The tribunal makes the following uncontroversial findings.
·The applicant served in the navy between 7 July 1963 and 18 May 1972 (T3/11) and rendered operational service from 17 August 1964 to 11 August 1966 (ex R29).
·The applicant lodged a valid claim on 22 December 2000 (T53, T60).
·The date of effect of any decision favourable to the applicant would be 22 September 2000 (s 20(1) of the Act).
·The standard of proof in relation to whether the applicant’s post traumatic stress disorder (or another condition) is a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to diagnosis of any condition is the reasonable satisfaction standard in s 120(4) of the Act. This standard equates to satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
·The Statement of Principles (“SoP”) issued by the Repatriation Medical Authority under s 196B of the Act relevant to the determination of this matter is, prima facie, SoP 3/99[3] concerning post traumatic stress disorder, as amended by 54/99[4]. Other SoPs may become relevant if it is found that Mr Hardman has a war-caused disability other than post traumatic stress disorder. Thus, if depressive disorder becomes relevant, the SoP would be 58/98[5] concerning depressive disorder.
[3]
[4] SUGGESTING DISABILITIES WAR-CAUSED
11. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant like Mr Hardman will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
12. The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. The tribunal considers the hypothesis, properly stated, to be that Mr Hardman, during his operational service, experienced a severe stressor [as regards post traumatic stress disorder] or experienced a severe psychosocial stressor or stressors [within the two years immediately before the clinical onset of depressive disorder]. The tribunal prefers that description to one advanced by Mr Colborne which was that “the disease [be it post traumatic stress disorder or depressive disorder] is relevantly connected with [Mr Hardman’s] operational service” (ex AH1).
13. The second step is to ascertain whether there is a relevant SoP in force. This has been done in paragraph 10 above.
14. The third step is to form an opinion as to whether any hypothesis raised is reasonable. If a hypothesis is consistent with the template in the SoP, according to Deledio (above), it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant’s service.
diagnosis
15.
A first step, however, is to decide to the level of reasonable satisfaction
(s 120(4) of the Act) what, if any, injury or disease, or both, affects the veteran. The tribunal summarised the applicable principles in Re Hunter and Repatriation Commission (2002) 69 ALD 644 at pages 663-664:
“…
66. From these authorities, as distilled in Benjamin[6] (above) by the full court, the following principles apply:
(a) Where a decision-maker finds that a claimed disease is not war-caused, the decision-maker has a duty to consider, nevertheless, whether a veteran has ‘a disease’ (whatever may be its label) that was war-caused.
(b) Thus, as was suggested in Benjamin (above), where a decision-maker finds that a veteran suffers from some psychiatric problems but they cannot be characterised as PTSD (the claimed condition) the decision-maker must consider whether or not those psychiatric problems might be a disease and might be war-caused within the meaning of the Act.
(c) Under s 120(1) of the Act the decision-maker must determine that the psychiatric problems constitute a war-caused disease unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) deems the decision-maker to be so satisfied if the decision-maker 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 veteran.
(d) The decision-maker has to attempt to find a kind of disease that is affecting the veteran. It does this on the balance of probabilities applying the standard of proof in s 120(4) of the Act. As the full court stated in Benjamin (above), the first question for the decision-maker will be how to characterise the psychiatric problems exhibited by the veteran. If satisfied that the symptoms constitute an injury or disease, the next issue is whether there is a SoP relating to it. This is also decided on balance in accordance with s 120(4) of the Act.
(e) Where a relevant SoP is in force the Deledio (above) principles apply. Where the disease is not the subject of a SoP then the decision-maker considers the whole of the material before him, her or it to form an opinion whether the material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran. If the decision-maker is of the opinion that the material does not raise such a reasonable hypothesis, the decision-maker is taken to be satisfied beyond reasonable doubt that the disease was not war-caused.
…”
[6] (2001) 34 AAR 270.
16. It is established that a decision-maker can find that a certain type of disease is present even where the appearance of the disease in the veteran does not accord with the definition of the disease in a SoP (Re Slattery and Repatriation Commission (1998) 52 ALD 90, 106 and Benjamin (above) at 282). The tribunal in Re Slattery (above) described the approach as being, “Is Mr Slattery’s condition, quite apart from its cause, to be determined according to the expert evidence of psychiatrists based on the general criteria of DSM-IV[7] or on the basis of the condition as defined in SoP15?” (page 106) (this tribunal’s emphasis). The tribunal went on to find that a decision-maker could prefer the evidence of psychiatrists to that of a SoP in deciding whether a particular disease is present.
[7] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995).
17. Mr Colborne argued strongly that Mr Hardman suffers from post traumatic stress disorder. In ex AH1/3 he wrote:
“…
7. The definition of post traumatic stress disorder in the SoP is not materially different to the criteria for post traumatic stress disorder found in DSM-IV. However, unlike the SoP, DSM-IV does not require strict compliance with its criteria for a diagnosis.
…”
18. The problem for Mr Hardman with the SoP definition was its insistence in paragraph (A) on a stressor of a particular type as required for a diagnosis of post traumatic stress disorder. The SoP definition is in paragraph 2 of the SoP and is as follows:
(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect
to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
19. Mr Colborne referred to the evidence from Associate Professor C Quadrio whom he described as mistaken in allowing the definition of a stressor in the SoP to influence her clinical judgment as to whether a diagnosis of post traumatic stress disorder was appropriate. She was said to have found that Mr Hardman manifested post traumatic stress disorder symptoms sufficient for her to be satisfied that he suffered from post traumatic stress disorder. She said she would diagnose post traumatic stress disorder but for the SoP definition (ex R16/21-23).
20. Mr Colborne referred also to the tribunal’s analysis in Re Slattery (above). He said that the tribunal in that case did not have regard to the commentary on the post traumatic stress disorder criteria in DSM-IV in considering what was meant by the requirement that the person “experienced, witnessed or was confronted” with an event. He then said, however, that “[h]aving adopted the criteria from DSM-IV, it is to be presumed that those criteria in the SoP are to be construed in accordance with the explanation of them in DSM-IV. Thus it is sufficient if one learns about violent personal assault, serious accident, or serious injury to a family member or close friend (DSM-IV, page 424) …” (ex AH1/4). He noted that the criteria require only a “threat” of death or serious injury or a “threat” to the physical integrity of self or “others”.. According to dictionary definitions, it is sufficient to constitute a threat if there is an indication of something undesirable coming, regardless of whether it ever eventuates.
21. Mr Colborne quoted from DSM-IV:
“It is important that DSM-IV not be applied mechanistically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and not meant to be used in a cookbook fashion. For example, the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe.” (DSM-IV, page xxiii)
22. At this point it is useful to consider the recent Federal Court authorities, Stoddart (above) and Woodward (above). The outcome is well summarised by the full court in Woodward (above). The court had the following to say about the definition of “experiencing a severe stressor” at pages 354-355:
“122 The definition of ‘experiencing a severe stressor’ has three elements that relate to a person’s encounter with an event involving death – the person must have ‘experienced, witnessed or [have been] confronted with an event that involved death...’.. Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be ‘confronted with’ an event that he or she has neither experienced nor witnessed.
“123 In any event, as a matter of ordinary usage to be ‘confronted’ with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he ‘confronts’. This is no less the case when the confronting event is one involving death or serious injury.
“124 In the present context the point becomes clearer when reference is made to the second paragraph of the definition. This illuminates the definition by giving examples of events that those who drafted it had in mind as falling within it. The second paragraph states that events that qualify as stressors in the setting of service in the Defence Forces include ‘participation in or observation of casualty clearance’.. A member of the armed forces taking part in casualty clearance may well have been outside the area of immediate conflict and have neither experienced nor witnessed the events that caused the casualties, yet it is easy to see how such a person could be ‘confronted with’ such events.
“…
“128 The material pointed unequivocally to there having been an event involving death. This was the death, when their aircraft had been shot down, of the two pilots with whom, according to the material, Mr Woodward had flown on operations against the enemy. The material also pointed unequivocally to Mr Woodward being brought face to face with the reality of death on active service. This occurred not only by his having to process forms concerning the deaths (Mr Woodward was a clerk) and by his having to pack the belongings of one of the pilots who had been shot down but also, and perhaps more acutely, by his coming face to face with death on active service by seeing the images, amongst the belongings in the tent, of those whom he believed to be the dead pilot’s wife and young daughter. Had the AAT brought to its task a correct understanding of the definition of ‘experiencing a severe stressor’ it might very well have concluded that, in these circumstances, Mr Woodward was relevantly ‘confronted with an event … that involved actual death…’.”
23. On whether the material must point to an actual threat of death or injury as opposed to a perceived threat, their Honours endorsed the remarks of Mansfield J in Stoddart (above) and said as follows at pages 356-358:
“134 … The problem that Mr Woodward appears to have faced before the AAT was that the material was not seen as pointing to an actual threat of death or injury as opposed to a perceived threat. It seems that the Tribunal accepted a distinction propounded by counsel for the Commission that the threat of death or serious injury must be real, judged objectively. The possibility is thus raised that the Tribunal misunderstood and misapplied the relevant definition in this respect also.
“135 The question then is whether material pointing to a genuine belief based on reasonable grounds that an event or events involve a threat of death or serious injury can satisfy the definition of ‘experiencing a severe stressor’ when there is no material pointing to the reality in fact of what is genuinely and reasonably perceived.
“136 When the question ultimately in issue involves the effect of an objectively stressful event upon a person’s mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of the reality, should be determinative. Examples that bring any such distinction into question come readily to mind: the passenger in an aircraft who overhears another saying that he has an explosive device, or the shopkeeper threatened with a shotgun (in fact unloaded) are just two such examples.
“137 In Stoddart v Repatriation Commission (2003) 197 ALR 283 (‘Stoddart’), Mansfield J held that the AAT had erred in requiring that a ‘threat’ be one that, judged objectively and remote from the circumstances and state of knowledge of the person experiencing it, has a real or actual prospect of resulting in death or serious injury. His Honour considered that by doing so the Tribunal had thereby imported into the concept of ‘threat’ in the applicable SoPs more than was demanded by their wording and their purpose: see at [41].
“138 Mansfield J observed:
‘[47] It is not apparent to me why the SoPs should distinguish between events which actually involved the threat of death or serious injury leading to ALD [alcohol liver damage] or PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to ALD or PTSD. The respondent contends, and the tribunal accepted, that in the former case the conditions are consistent with an hypothesis of being war-caused, but in the latter case they should be seen beyond reasonable doubt as not consistent with an hypothesis of being war-caused. In this matter, if the applicant is believed about the occasions he referred to, his operational service was in an area where his vessel might come under attack (but did not) and battle stations were signalled and he feared for his personal integrity and suffered ALD and PTSD as a result.
‘…
‘[50] In my judgment, the meaning of the word “threat” as used in the definition of “experiencing a severe stressor” does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause ”that involved actual or threat of death or serious injury” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. … That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word “threat” a range of circumstances, some of which are referred to above, which common sense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of “sound medical-scientific evidence” in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the tribunal adopted.’
“139 Mansfield J concluded that the AAT erred in law in its understanding of the expression ‘experiencing a severe stressor’ in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words ’experiencing’ should be construed as having at least this partially subjective connotation.
“…
“141 We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.”
24. As a result of the Woodward decision (above) it is now clear that:
(a)A person may be confronted with an event that he or she has neither experienced nor witnessed.
(b)If the thing being confronted is an event it is not necessary that the person be present at the event that he or she confronts.
(c)Material pointing to a genuine belief based on reasonable grounds that an event, or events, involved a threat of death or serious injury can satisfy the definition of “experiencing a severe stressor” when there is no material pointing to the reality in fact of what is genuinely and reasonably perceived.
25. Mr Ginnane in his submissions, which predated the Stoddart (above) and Woodward (above) decisions, was unimpressed with Mr Colborne’s approach in paragraphs 19-21 above. In his submissions he regarded the requirements in the SoP and in DSM-IV as synonymous (ex AH3/6-7). He submitted that none of the incidents, yet to be described in these reasons, relied on by the applicant as instances of exposure to traumatic events or extreme stressors, met the definition of post traumatic stress disorder. The tribunal, he said, could not be satisfied that Mr Hardman was exposed to a traumatic event or an extreme stressor and so the tribunal should find, on the balance of probabilities, that Mr Hardman does not suffer from post traumatic stress disorder.
26. Mr Colborne summarised the evidence regarding Mr Hardman’s condition. Essentially it was:
· On 8 December 1971 he was diagnosed with anxiety state at HMAS Penguin (ex R4).
· On 10 July 1977 at Wallsend District Hospital he was diagnosed as having taken an intentional overdose with Serepax tablets and with acute depressive illness (ex R3).
· Dr R Gertler, a psychiatrist, diagnosed Mr Hardman as suffering from post traumatic stress disorder (ex A7).
· Dr F Lumley, a psychiatrist, has treated Mr Hardman for some six years and has seen him on about 50 occasions (transcript, 13 December 2002, page 59). He regards Mr Hardman as suffering from post traumatic stress disorder and major depressive disorder (T5, T21, T23, T48, ex R22/5). He regarded Mr Hardman as having suffered a trauma in the navy sufficient to ground a diagnosis of post traumatic stress disorder.
· Associate Professor Quadrio’s viewpoint was noted earlier in paragraph 19.
27. The tribunal accepts Mr Colborne’s submissions and finds that Mr Hardman suffers from post traumatic stress disorder. This is because of the weight of psychiatric opinion rather than because he necessarily fulfils the requirements of the SoP definition. This finding implicitly accepts Mr Coleborne’s submissions, based on the Slattery and Benjamin decisions (above) that permit a decision-maker to rove beyond the SoP definition in making a finding as to diagnosis.
28. It may be necessary to return to consider the diagnosis of depressive disorder if the tribunal finds the post traumatic stress disorder not to have been war-caused.
conformity to the sop
29. The tribunal notes the following comments by the full Federal Court of Australia in Benjamin (above) at page 283:
“55 The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.
“56 However, if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all of the evidence available to it, whether s 120(3) is satisfied, without reference to s 120A(3).
“57 That is to say, if the Tribunal were to determine that there is no SoP in force with respect to the kind of disease contracted by the Veteran, it would then be necessary for the Tribunal, after consideration of the whole of the material before it, to form an opinion as to whether that material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Veteran. If the Tribunal is of the opinion that the material does not raise such a reasonable hypothesis, the Commission will be taken to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is a war caused disease for the purposes of s 120(1)..”
30. This tribunal’s understanding of the approach favoured by the full court is that the SoP on post traumatic stress disorder becomes applicable in relation to whether Mr Hardman’s post traumatic stress disorder was war-caused, even though his post traumatic stress disorder did not meet, or may not have met, the post traumatic stress disorder definition in the SoP. This appears at odds with a differently constituted tribunal’s approach in Re Slattery (above) where at pages 107-108 the tribunal said the following:
“(76) The next consideration is whether the hypothesis is not inconsistent with SoP. The relevant SoP is SoP15. The first question is whether SoP15 deals with the condition from which we have found Mr Slattery to be suffering. Paragraph 4 describes the condition in terms that include para 4 (a) (i), ie that:
‘the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;’
“(77) Did Mr Slattery experience or witness or was he confronted with an event that involved actual death? Death was certainly present at the morgue but does SoP15 require that he be present at the moment that the people died? As the words of DSM-IV have become enshrined in SoP15, the answer to that question has become a matter of statutory interpretation and not of medical opinion.
“(78) The word ‘death’ has the following meanings given in the New Shorter Oxford English Dictionary :
‘... 1.The act or fact of dying; the end of life; the final and irreversible cessation of the vital functions of an animal or plant. OE b An instance of a person's dying. E18. c Cessation of life in a particular part or tissue E19. 2 The state of being dead; the state or condition of being without life, animation or activity ...’
A similar range of meanings is given in the Macquarie Dictionary.
“(79) The word ‘witnessed’ suggests that the person was present at the event involving real or present (ie actual) or threatened death. The word ‘experienced’ suggests that the person observed or encountered such an event and the word ‘confronted’ that he or she was faced with such an event. While that is so, it does not lead us to conclude that one meaning of the word ‘death’ should be preferred over another. In particular, we are unable to conclude that the definition of PTSD in SoP15 is referring to the act of dying rather than to the state of being dead. In our view, it may refer to both meanings of death.
“(80) If we are correct in this interpretation, we must have regard to SoP15 for we have found that he is suffering from PTSD as a result of his having experienced, witnessed or confronted an event that involved persons' being dead (ie actual death in one of its meanings) and our findings are also consistent with the remaining components of the definition of PTSD as it appears in that SoP. That means that we must consider whether Mr Slattery experienced a stressor prior to the clinical onset of PTSD for Mr Sapsford relied on para (a) of the causal circumstances set out in SoP15: see para (62) above. In this case, we are satisfied that Mr Slattery did suffer a stressor (ie his facing actual death at the Saigon morgue) before the clinical onset of his PTSD. The hypothesis is, therefore, upheld by SoP15. It follows from our earlier conclusions that Mr Slattery's PTSD is a war-caused disease.
“(81) We have also considered what the outcome would be should we be incorrect in our interpretation of the word ‘death’ in SoP15. If SoP15 refers only to PTSD which has been diagnosed where a person has experienced, witnessed, or been confronted by an event involving, among other matters which are not relevant in this case, death or threatened death in the sense of a person's actually dying, it cannot apply where we are concerned with PTSD diagnosed where a different stressor has been experienced. That is so because the disease to which SoP15 applies has been defined with great precision. That, however, is not the disease from which we have found Mr Slattery to be suffering. We have found that he is suffering from PTSD caused by his exposure to a traumatic event involved with his experiencing, witnessing and being confronted by an event involving the actual state of being dead but not that of a person's actually dying. It follows that SoP15 does not apply to his condition and we need have no further regard to whether or not the facts point to the hypothesis's being consistent with SoP15.”
31. The full court in Benjamin (above) did not make allowances for any alternative form of post traumatic stress disorder. Acceptance of the approach suggested in paragraph 81 of Slattery (above) may also now be out of accord with the decision of Weinberg J in the Federal Court in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at pages 704-705 where he said:
“66 Mr Hanks submitted that the AAT, rather than giving primacy to the SoP, had preferred the opinion of Dr Wahr. That approach was inconsistent with the requirements of s 120A(3) of the VE Act, as explained by the Full Court in Repatriation Commission v Deledio (supra), and defeated the objectives of the 1994 amendments, as spelt out in the relevant extrinsic material.
“67 The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of ‘purely medical ... issues’ out of the hands of bodies such as the AAT - Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable - see Deledio v Repatriation Commission (supra) at 411-2. An hypothesis that fails to fit within the template will be deemed not to be ‘reasonable’, and the claim will fail.
“68 The hypothesis which the AAT found to be reasonable, namely, that the veteran experienced the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event (ie within two years of the conclusion of the war) was not upheld by the relevant SoP. The AAT could not, therefore, have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran's generalised anxiety disorder was not war-caused.”
32. The problem in Gosewinckel (above) stemmed from a SoP requirement for generalised anxiety disorder. If the generalised anxiety disorder was to be regarded as war-caused, the veteran had to have experienced a stressful event not more than two years before the clinical onset of generalised anxiety disorder. In discussing the date of clinical onset of the veteran’s generalised anxiety disorder the tribunal had found that it had its onset by the end of the Second World War. It relied on the evidence of a Dr Wahr for this finding. However, in its argumentation at paragraph 32 of its decision (Re Gosewinckel and Repatriation Commission (AAT no 13412, 29 October 1998)), the tribunal considered that there could be clinical onset of a disease before the condition satisfied all the requirements of the definition of the disease in the SoP. The generalised anxiety disorder SoP required certain symptoms to be present for at least six months before the veteran could be said to suffer from generalised anxiety disorder. The tribunal considered that the clinical onset of generalised anxiety disorder was when the veteran first reported symptoms that, on the material before the tribunal, could have been attributable to the existence of generalised anxiety disorder. As the tribunal said, “’Clinical onset’ does not require that the symptoms have been present for six months”.. This was not endorsed by Weinberg J. The clinical onset required by the SoP had to be assessed by reference to the requirements in the SoP not by reference to the views of a specialist.
33. In fairness, it must be said that the force of Gosewinckel (above) may have been reduced by the full court decision in Benjamin (above), because the clause in the SoP not properly met in Gosewinckel (above) was diagnostic. However, whatever may be the current force of Gosewinckel (above) in relation to diagnostic clauses in SoPs, this tribunal considers that it retains considerable force in respect of clauses in SoPs dealing with the factors that describe the possible causes of particular conditions.
34. The submissions of Mr Williams, SC, (on behalf of the Repatriation Commission) provide additional argument in support of the tribunal’s stance on this issue. The points Mr Williams makes are:
· In Fogarty v Repatriation Commission (2002) 36 AAR 307, 316 Ryan J said that, “Before anything else, the Tribunal must find to its 'reasonable satisfaction' the disease exists; Budworth at [14 -- 15]. It is not confined to considering only those diseases or conditions contended for by one or other party before it, and should not test the existence of a postulated disease by reference to any SoP while conducting this first inquiry; see Benjamin at [41] and [48] –[50].”
· Mr Williams characterised Mr Colborne's argument as concluding that if Mr Hardman's experiences do not satisfy the definition in clause 2 of the applicable SoP, the SoP does not apply and Mr Hardman's collection of symptoms thereby fall for determination without regard to the SoP. He saw this as doing violence to the statutory scheme. He referred to the following provisions within s 196B of the Act:
Determination of Statement of Principles
196B (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Emphasis is placed on the identification of a “particular kind of injury, disease or death”. Homing in on “sound medical-scientific evidence” he then referred to s 5AB(2) of the Act where the concept is defined:
5AB (2) Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a) the information:
(i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b) in the case of information about how that kind of injury, disease or death may be caused—meets the applicable criteria for assessing causation currently applied in the field of epidemiology.
Again the emphasis is on a particular kind of injury, disease or death. From this Mr Williams argues that the evidence that must exist before the power may be exercised is evidence about the causes of a kind of injury, disease or death and the power, once exercised, is to determine a SoP in respect of that kind of injury, disease or death. The task of the decision-maker is to identify the kind of injury, disease or death and then apply the relevant SoP, if any, to the question of war-causation.
· Mr Williams referred to the explanatory memorandum accompanying the Bill that led to the SoP legislation[8] where the Minister said, among other things, that “the [Repatriation Medical] Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service”.
· As Mr Williams put it, and the tribunal endorses, “The Tribunal must determine, under s 120(4), on the balance of probabilities, whether the collection of symptoms which have been raised in this case constitute a kind of psychiatric condition – the kind of psychiatric condition which can result from traumatic events. If so satisfied, the kind of psychiatric condition found (if any) is to be tested against the applicable statement of principles if one has been determined. The RMA has determined that kinds (classes or types) of psychiatric conditions may be related to reaction to events. These are the kinds of diseases called, by the RMA, PTSD, generalised anxiety disorder and depressive disorder. Each of these kinds of psychiatric condition is a kind of disease in respect of which the RMA has determined a statement of principles.” Those SoPs cover the field, said Mr Williams, relying on the full Federal Court’s statement in paragraph 100 of the decision in Woodward (above) (200 ALR 350). At paragraph 89 (page 348) of Woodward (above) the court also addressed this issue in stating:
“Such an interpretation [ie an interpretation seeking to bypass the applicable SoP] would not be consistent with what we consider to have been the manifest intent of the legislature when it introduced s 120A in 1994. That intent was to ensure that all future claims involving matters of medical-scientific opinion, as to which an SoP was in force, would have to meet the requirements of that SoP.”
[8] Explanatory Memorandum concerning the Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994.
35. Mr Colborne’s submissions (ex AH1) identified the following raised facts in support of the hypothesis that “the disease [be it post traumatic stress disorder or depressive disorder] is relevantly connected with [Mr Hardman’s] operational service”.
“…
93. The raised facts in respect of both post traumatic stress disorder and depressive disorder include –
(1) When Mr Hardman joined the Parramatta he was a happy, relaxed person who got along with all members of the ship’s company (A9 & transcript 16 December 2002, page 42, line 1);
(2) Mr Hardman witnessed an Indonesian fisherman being tortured;
(3) He has never forgotten the look of fear in the face of one of the Indonesian fishermen (ex A10/16);
(4) Witnessing the torture incident distressed him greatly (T24/120);
(5) He experiences flashbacks of the interrogation (T5/42);
(6) He attempted to rationalise why he stood there and let it happen (transcript 13 December 2002, page 55, line 37);
(7) One night at the Cottage Hospital in Tawau, Mr Hardman saw several Malaysian servicemen remove a wounded Indonesian against his will and heard gunfire shortly thereafter (T24/120);
(8) Mr Hardman was terrified at the time (ex A7/1);
(9) When Mr Hardman returned to the Parramatta, following his operation, he was withdrawn, wouldn’t talk or go ashore [presumably with others], would get into arguments and was not happy at all (transcript, 16 December 2002, page 42, line 1);
(10) Towards the latter part of the Parramatta’s service with the Far East Fleet Mr Hardman was really hitting the alcohol (transcript, 16 December 2002, page 49, line 30);
(11) By the mid-sixties, Mr Hardman was aggressive, depressed, had become a heavy drinker and spoke of events during his hospitalisation which were abhorrent and the subject of repeated nightmares and appeared and still does appear to be in emotional turmoil (ex A9); and
(12) Mr Hardman has the symptoms of post traumatic stress disorder (transcript, 16 December 2002, page 56, line 30 and page 57, line 23).
…”
36. It is necessary to ascertain whether the raised facts are consistent with the required causal factors described in the post traumatic stress disorder SoP. Clause 5 of SoP 3/99 sets out the accepted causal links between operational service and post traumatic stress disorder. Relevantly, these include:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
37. “Experiencing a severe stressor” is defined in SoP 54/99:
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity. In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;.
Alleged torture of Indonesian fisherman as stressor
38. SoP clause 4 requires that a factor in clause 5, to be relevant, must be related to operational service rendered by Mr Hardman. The first stressor identified by Mr Hardman in ex A3 was:
“When on patrol we would be closed up at action stations. My job was in the anti-submarine mortar magazine which was situated just forward of the quarterdeck. In late April 1965, we took on board some Malayan interpreters whose job was to question any suspects from Indonesian boats we stopped and searched. They were dressed in military uniforms.
“One evening, I opened the magazine door to get some cooler air. I observed the Malayans conducting a search of an Indonesian fishing junk tied to our quarterdeck. I observed several Indonesian men being questioned by the Malayans. Some of them were struck about the head. I then saw a rope being tied to one man’s legs. He was pushed into the water, and, when the rope was pulled, his head would be forced under water. At this point I was seen by a Petty Officer who told me to return to my station. One thing I have never forgotten is the look of fear on the face of one of the Indonesians. I was struck by the terror and the pleading look in his eyes. I did not report this incident at the time.”
39. In oral evidence Mr Hardman said more about this incident. The Indonesian fisherman was dropped into the water from the stern of the fishing boat which was seven or eight feet above water line. It was alongside the Parramatta about two or three feet out from the starboard side. Mr Hardman could not recall how the Malays manipulated the rope or how far behind the fishing boat stern the rope was held. The stern of the fishing boat was about two feet below the Parramatta quarterdeck. The Indonesian was pushed backwards into the water. He surfaced and the rope around the feet was immediately pulled. His head went under water. He was held there for up to 30 seconds. He was submerged from waist to the top of his head. When the Indonesian emerged he may have been screaming but Mr Hardman could not recall. The man’s arms were tied behind his back. He floated on his back. It was a second Indonesian on the fishing boat who had cast a glance at Mr Hardman. Mr Hardman said there were three Malays on board the HMAS Parramatta at the time.
40. Mr Hardman later said that the submerging of the Indonesian man was in progress when he first saw it. He also later said that he had reported the matter to his boss the next day but was told it was not “our concern”.
41. This is Mr Hardman’s version of the event. The tribunal will address the other material regarding the incident shortly. At this point, however, taking Mr Hardman’s account at face value, does it comply with the notion in the SoP of “experiencing a severe stressor”? If it does not, then that is the end of any prospect of the event serving as foundation for a reasonable hypothesis. Applying the language of the SoP definition in paragraph 37 above it can be said that Mr Hardman witnessed an event that involved a threat to another person’s, the Indonesian’s, physical integrity. It could be said that the event involved threat of serious injury or death to the Indonesian. To this point then in our analysis, the hypothesis appears reasonable.
42. The Federal Court has, however, held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v Repatriation Commission (2001) 66 ALD 271, 276, 277, 282-283 Emmett and Allsop JJ said:
“18 It is important to understand the following about East.. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. …
…
“21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.
“22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …
…
“41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
‘A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.’”
43. From Bull (above) clearly the tribunal must at this point consider the whole of the material to form an opinion and to decide whether the hypothesis is fanciful, impossible, incredible, too remote or too tenuous. The correct way of considering the whole of the material may be contentious. The concern of the tribunal is that, if one considers only the raised facts presented in paragraph 35 above, the hypothesis is more likely to stand than if one considers certain inconsistencies in Mr Hardman’s account when he presented it at the tribunal. If the tribunal can consider material from Commanders Lyneham and Vale the hypothesis is at even greater risk. It is necessary to consider the authorities.
44. The leading decision on SoP cases, Deledio (above) does not go into this issue. Deledio (above) operates on the assumption that the SoP regime has not altered the underlying principles relating to the interaction between ss 120(1) and (3) of the Act. The tribunal has, therefore, considered the remarks of the High Court in the leading cases on s 120. In the extracts from the judgments in those cases (that appear below) the reader’s attention is drawn to the passages that have been underlined by the tribunal as these have influenced the tribunal to take the approach it does in paragraph 53 below. Section 120(1) and (3) is as follows:
Standard of proof
120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
45. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court (Mason CJ, Deane and McHugh JJ) said at pages 413-414, 416:
“Notwithstanding the submission of counsel for the Commission, s.120(3) is not exhaustive of the content of s.120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact.. The purpose of sub-s.(3), as demonstrated by its terms and its history, is to ensure that a claim to which s.120 applies is not met unless there is some material which raises the relevant causal hypothesis. Its principal purpose is to overcome the effect of the judgment of this Court in Repatriation Commission v. O'Brien ((1) (1985) 155 CLR 422, at pp 433-434) where the majority held that it was not the law that the Commission must be satisfied that there were insufficient grounds to support the claim if the material in the case did not ‘provide some positive inference in favour of the requisite connexion between death or incapacity and war service’ The Explanatory Memorandum to the Bill which became the Veterans' Entitlements Act stated:
‘Sub-clause 119(3) (i.e. s.120(3)) will negate the effect of the 1985 decision of the High Court of Australia in Repatriation Commission v. O'Brien.. A pension will not be payable in circumstances where the evidence does not provide some positive inference in favour of a connection between the injury, disease or death and the veteran's or member's particular service. The sub-clause will require the Commission to refuse the claim where, at the end of the Commission's consideration of the material before it, no reasonable hypothesis that there is such a connection has been raised, and if raised, no such reasonable hypothesis remains.’
“An addition to the Explanatory Memorandum stated:
‘It is intended under sub-clause 119(3) that there must be some material before a determining authority for it to make a judgement on whether it is satisfied beyond reasonable doubt that there is no sufficient ground to grant a claim.’
“The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s.120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. Thus, in The Commissioner for Government Transport v. Adamcik ((2) (1961) 106 CLR 292), this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly 20 years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J. said ((3) ibid., at p 306):
‘The most that could be urged against Doctor Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false.’
“However, a hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature’((4) ibid.). Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’((5) East v. Repatriation Commission (1987) 74 ALR 518, at p 533).
“But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s.120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion..
…
“The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making (the) determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s.120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, ‘beyond reasonable doubt, that there is no sufficient ground for making the determination’ even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s.120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist ((7) cf. Barca v. The Queen (1975) 133 CLR 82, at p 105).”
46. In Byrnes v Repatriation Commission (1993) 177 CLR 564, 569-572 Mason CJ, Gaudron and McHugh JJ, in the High Court said:
“The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell ((4) ibid, at p.414, Mason CJ, Deane and McHugh JJ said:
‘(A) hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature ((5) Commissioner for Government Transport v. Adamcik (1961) 106 CLR 292, at p 306.)”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous” ((6) East v. Repatriation Commission (1987) 16 FCR 517, at p 532.).’
In some cases, the hypothesis may assume the occurrence or existence of a ‘fact’.. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.
“Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved ((7) Bushell (1992) 175 CLR, at p.416), either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis are not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis ((8) ibid, per Brennan J at p.427.).
“The passages in the joint judgment in Bushell that indicate that once the ‘raised facts’ raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved ((9) (1992) 175 CLR, at pp.414, 415-416.) should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s.120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered ‘the whole of the material’ bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that ‘the factual foundation upon which the hypothesis can operate does not exist’ ((10) ibid, per Mason CJ, Deane and McHugh JJ at p.416; see also per Brennan J at p.427.).
“The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
“…
“As a matter of law and not merely of fact, once a reasonable hypothesis was raised the Commission was bound to find in favour of the appellant unless it was satisfied beyond reasonable doubt of at least one of two matters. First, that the appellant had not suffered injury of such severity to set in train a process which could cause spondylosis. Secondly, that the evidence of Dr Rowden concerning the hypothesis and the evidence of Dr Whitty that there was a 20 to 1 chance of it being correct were unacceptable. Only if one or other of these matters were negatived to the required standard of proof would it be open to the Commission to conclude that the injury was not war-caused. Although nothing in s.120 (see s.120(6)) imposes on any person any onus of proving any matter relevant to a determination under that section, the Commission, as a matter of law, could not be ‘satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination’ (s.120(1)) unless it was satisfied as to one or other of these matters.”
47. The judgment of Brennan CJ and Gaudron and Gummow JJ in a failed application for special leave to appeal in Repatriation Commission v Owens (1996) 70 ALJR 904, 904-905 contained the following:
“A majority of the Full Court [of the Federal Court] allowed an appeal from Lockhart J but their Honours seemed to have misunderstood the nature of the issue arising under s 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals tribunal.
“Although the applicant has shown a prima facie case of error on the part of the majority of the Full Court, the insertion of ss 120A and 120B by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) substantially diminishes the ground for seeking special leave to appeal.
“The problem having been elucidated by this Court in earlier cases, it is not appropriate to grant special leave in this case.”
48.
The Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364, 366-367 (Northrop, Sundberg, Marshall and Merkel JJ) said as follows in relation to
s 120 in a non-SoP context:
“The method of applying s 120 (1) and (3) is now well established:
1. One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2. The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the ‘raised facts’) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.
3. Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4. If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
119. In cross-examination Mr Ginnane took Mr Hardman to evidence he gave the tribunal presided over by Senior Member Allen on 3 December 1999 (ex R20/14). Before the earlier tribunal Mr Hardman admitted that a statement he had supplied to the VRB on or about 10 April 1997 (T18/102) contained falsehoods. It said that when he was at the camp near the airstrip “the camp [was] constantly under sniper fire plus mortar rounds” and that he feared for his life. He told the earlier tribunal that that material had been included at the suggestion of the “veterans’ association” (ex R20/13). He confirmed at the earlier tribunal hearing that the camp was not constantly under sniper fire. He also said that the mortar rounds were not fired into the camp (ex R20/30). At that earlier tribunal hearing the applicant had conceded that there was no certainty that he had actually shot anyone. This had been only his own opinion (ex R20/30). It was noted at the current hearing in this matter that Mr Hardman had told the VRB (ex A10/17) that he did shoot a person during the airstrip incident.
120. Asked to recall the details of the airstrip incident Mr Hardman said that he was shot at. He was given a rifle. He was behind a circle of sandbags but could not recall the height of the sandbags. He could not recall the positioning of his rifle in relation to the sandbag formation. He said he was recuperating from appendicitis; that he was sick and scared. He said that he was dragged into a hole that had been dug out within the sandbag formation. He could not recall the depth of the hole.
121. Mr Hardman said that he had his camera with him at all times and took “snaps”. This was while missiles were hitting the sandbags. He then said he took photographs before the shooting began. He took photographs of mortars exploding in the mid-distance.
122. Mr Hardman recalled 10-12 Indonesians were captured but he was unaware of the number involved in the attack. He said he saw dead or injured bodies. He said he would expect the incident to have been recorded except that this was special forces action by Malaysian police and hence may not have reached the records.
123. As with the other alleged incidents, taken at face value, it can be argued that the applicant experienced a severe stressor in accordance with the SoP in that he was confronted with an event that involved actual threat of death or serious injury to his or another’s physical integrity.
124. Mr Ginnane, however, described this as the event most riddled with variations in its telling over the course of Mr Hardman’s claims (ex AH3/20). At one stage in July 1997 he recorded witnessing in 1965 the shooting of the Indonesians (T24). In cross-examination before the tribunal on 3 December 1999 (ex R20/45) Mr Hardman was asked how the Indonesians were shot. He responded that he did not know as he could not see them. He stated that it was his opinion that they had been shot because he heard gunfire. He said he had not seen them again. He conceded that they had been shot in his mind but he did not see the guns physically put up to them. “I couldn’t understand why there would be gunfire in the area they were and they weren’t seen again” (ex R20/45).
125. As regards the applicant being under fire at the airstrip and shooting in the direction of a person running in his general direction from the edge of the jungle, on 13 December 2002 Mr Hardman told the tribunal (transcript, page 104) that, after the incident in which he said there were mortar shells exploding he took refuge in or behind the sandbags and took a couple of photographs. The shooting continued and he said he did not know how long it took him to look and see someone coming at him. Psychiatrist Associate Professor Quadrio in her evidence on 16 December 2002 told the tribunal that it was unusual for a person in the situation Mr Hardman described to have a camera around his neck. She did, however, say that it is not unusual for persons affected to take photographs of disasters (transcript, page 65).
126. On 15 January 1998 Mr Hardman told the VRB that he had photographs of bodies from his time at the airstrip camp (ex A10/6). On 3 December 1999, cross-examined as to this, Mr Hardman said that he did not know why he would have said that because there were no bodies (ex R20/40).
127. Mr Ginnane referred to Mr Hardman’s evidence at the VRB where, on 15 January 1998, he said that, from behind the sandbags, he saw someone running towards him and he shot the person. He said he did not know whether he shot a Malaysian or an innocent person as there were civilian workers also at the camp (ex R10/17). However, in T18/102, a handwritten description of the incident authored by the applicant, there was no reference to Mr Hardman having shot anyone. In relation to this statement, on 3 December 1999, Mr Hardman told the earlier tribunal that it had been incorrect of him to write that he had been required to return fire at this camp on a number of occasions. He said that this was the situation on only one occasion (ex R20/30). Asked to address the version wherein he was said to have shot someone, Mr Hardman told the tribunal, “I don’t know whether I shot someone. I said I – even though I’ve said in the thing I fired a rifle, I still don’t know whether I really shot them or not. I may have said I was aiming at them. To this day I don’t know whether it was me that shot them or someone else … It was my opinion of what I thought” (ex R20/30).
128. Mr Ginnane then quoted evidence from the tribunal hearing on 3 December 1999 (ex AH3/23):
“[A]fter the Applicant’s previous testimony to the VRB that he had shot someone was put to him …, the Applicant responded by saying:
‘Well if that’s what I said, it’s probably a generalised …’
“And later …, the Applicant testified that:
‘In my own mind sometimes I think I have, and then other times I hope that I haven’t. At the moment I still hope that I haven’t.’
“In the hearing before the current AAT on 13 December 2002, the Applicant was taken to the various documents and previous testimony referred to above in the course of his cross-examination [transcript, pages 80-88]. At [transcript, page 88] the Applicant testified:
‘Well, I don’t know whether I actually shot someone. I believe I may have.’”
129. From this Mr Ginnane submitted (ex AH3/28) that the applicant’s evidence that he took several photographs from the sandbag bunker and his evidence in which he said, “I don’t know how long it took me to look and see someone coming at me” (transcript, 13 December 2002, page 104), pointed against Mr Hardman having experienced, witnessed or being confronted with actual or threat of death or serious injury or a threat to physical integrity. “The Tribunal should conclude that the uncorroborated and inconsistent evidence of the Applicant does not point to him having experienced, witnessed or being confronted with an event of the kind referred to by the SoP. It would follow that no hypothesis, of the kind required by the SoP, is raised by the material before the Tribunal” (ex AH3/29).
130. Mr Williams in his submissions noted that Mr Hardman’s evidence was wholly uncorroborated, and was rife with inconsistencies and untenable implausibility (ex R20/38-47; T51/247-250). He described the inconsistencies as profound, to the point where he went from alleging he saw prisoners of war shot to “they may not have been shot, but as far as I was concerned, in my mind, they were” (ex R20/45).
131. Mr Williams referred to a wholly plausible and independently corroborated explanation for the loud noises and explosions seen by Mr Hardman, an air defence exercise known to have occurred and documented by Associate Professor Grey (ex R7; R13; T51/247-250).
132. In his submissions Mr Colborne said the following about this incident:
“84. Professor Grey was of the opinion that there was no attack because there was no record of the incident in either the report filed by Headquarters, Director of Operations Borneo or the Operations Record Books for RAF Tawau (R14 p 2). What the latter did show was that there was an air defence exercise held on 8 June 1965. Three Oerlikon guns were manned and thunder flash charges may well have been set off (R13). A young sailor in a foreign environment and recovering from surgery might well have mistaken the exercise as an attack, particularly if the Malaysians he was stationed with participated in the exercise. This is consistent with Professor Quadrio’s opinion that he was in a state of arousal and confusion at the time (Trans 16/11 p 67 line 13).
“85. If it was an exercise then there was no objective threat to Mr Hardman or anyone else. This would mean this incident could not satisfy the PTSD SoP requirement for an objective stressor. On the other hand, the SoP for depressive disorder only requires an occurrence that evokes feelings of substantial distress. The incident would satisfy that requirement.”
133. Mr Colborne’s concession based on a possible finding that there was no actual threat of death or injury can no longer stand after the decisions in Stoddart (above) and Woodward (above). It is sufficient that the material suggests that Mr Hardman believed in fact, on reasonable grounds, that he was exposed to risk of death or serious injury as a consequence of the event. Some of that material suggests that Mr Hardman was terrified and felt physically sick (ex A3). This would suggest a reaction involving intense fear, helplessness or horror, as required in the SoP.
134. The tribunal finds that the hypothesis involving the alleged firing incident is a reasonable hypothesis in that it accords with the template provided in the SoP on post-traumatic stress disorder.
Can the hypothesis, or a raised fact in support of the hypothesis, be disproved beyond reasonable doubt?
135. The hypothesis having been found reasonable, Mr Hardman’s post-traumatic stress disorder will be a war-caused disease unless, in accordance with s 120(1) of the Act and step 4 of Deledio (above), we can be satisfied beyond a reasonable doubt that the disease was not war-caused or that a necessary factor was absent.
136. Mr Williams submitted that the tribunal would be satisfied beyond reasonable doubt that Mr Hardman did not witness the event he says he witnessed. This is because it is a known fact that there was an air defence exercise at the camp on the relevant day, that Mr Hardman took photographs of the associated explosions and that everyone else at the time treated the whole matter as routine. He continued, “Given the known facts about the applicant’s conduct, the absence of any corroboration of the applicant’s evidence and the inherently implausible nature of the incident as asserted by the applicant, the Tribunal would be satisfied beyond reasonable doubt that all the applicant saw was an exercise, he knew full well it was an exercise (which is why he took photographs of the explosions) and that the rest is mere later invention.”
137. The tribunal agrees with Mr Williams’ submissions and finds itself satisfied beyond a reasonable doubt that the relevant incident was an exercise and was known by Mr Hardman to be so at the time it took place. This means that the applicant cannot rely on this incident to argue that his post traumatic stress disorder was war-caused. That is the effect of s 120(1) of the Act.
138. The tribunal therefore makes the ultimate finding that Mr Hardman’s post-traumatic stress disorder is not a war-caused disease.
alternative diagnosis
139. The applicant’s claim in respect of post traumatic stress disorder having failed, in accordance with the principles enumerated above in paragraph 15, the tribunal has an obligation to consider whether Mr Hardman has a disease, whatever be its label, that is war-caused. The alternative diagnosis pressed by Mr Colborne on the applicant’s behalf was depressive disorder. This was a fair proposition. Associate Professor Quadrio said that, if there was no stressor for post traumatic stress disorder, she would diagnose depressive disorder (transcript, 16 December 2002, pages 57 and 58). At page 72 of the transcript Associate Professor Quadrio said she thought that simply being taken off the Parramatta at the age of 18, taken to and operated on at a hospital where few people spoke English and then being reunited with his ship through indirect means would be a very significant stressor for depressive disorder. This was because Mr Hardman had coping difficulties and these would be distressing experiences for any young man.
140. Mr Ginnane in his submissions (ex AH3/32) argued that a diagnosis of depressive disorder is a questionable diagnosis. In essence Mr Ginnane supported his argument by advancing causes of the depression stemming from Mr Hardman’s personal life rather than from his war service. He also, not unreasonably, pointed to the “lies” Mr Hardman had told Dr Lumley about his experiences, revealing alleged traumatic experiences only when it was useful to his case to do so. The tribunal sees some of this argument as confusing the diagnosis of the condition with the question of its cause. To that extent the submissions were not relevant.
141. Mr Ginnane also cited the analysis of Finn J in Owen v Repatriation Commission (1995) 38 ALD 241 for the proposition that the tribunal cannot properly consider a disease of depressive disorder as possibly meeting Mr Hardman’s claim. In essence it was suggested that this was not a disease comprehended by Mr Hardman’s claim and so it had not been properly investigated by the respondent and considered by the VRB. The tribunal rejected this submission as inconsistent with more recent Federal Court authority such as that in Budworth v Repatriation Commission (2001) 63 ALD 422, 435 (per Madgwick J), which said on this point:
“[38] I do not, of course, mean that commonsense should be abandoned in this matter. If a veteran claims to have a ‘nervous’ condition and a particular psychiatric diagnosis is offered by his/her advisors, neither the secretary nor the decision-maker need be concerned to investigate tonsillitis. But, in a case like the present, the inquiry should be: does this claimant have any emotional or mental disorder or condition that would fall within the broad range of maladies apt to be comprehended by the lay description employed in the claim form and/or of which the particular diagnosis, then or later offered, is an example.”
142. Finn J in Owen (above) was addressing a situation akin to where a person had claimed for “nerves” and then asked the tribunal to assess for “tonsillitis”, to use Madgwick J’s example.
conformity to the sop
143. The SoP on depressive disorder is SoP 58/98. The SoP factor in question is factor 5(b), “experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.. From clause 8 of the SoP a “severe psychosocial stressor” is:
“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 …”
144. The alleged torture of the Indonesian fisherman cannot support a claim in respect of depressive disorder in view of the findings made already in relation to post traumatic stress disorder. It will be recalled that the tribunal found a reasonable hypothesis raised for post traumatic stress disorder but found against the applicant under s 120(1) of the Act. A similar analysis, with a similar outcome, applies in relation to depressive disorder.
145. In the matter of the alleged hospital incident as a stressor, the tribunal found a reasonable hypothesis existing for post traumatic stress disorder but it also found itself satisfied beyond a reasonable doubt that the alleged deaths did not occur. The tribunal did find, however, that a patient was removed from the hospital and questioned. This may suffice as a stressor for the purposes of depressive disorder. In accordance with the definition of “severe psychosocial stressor” in SoP 58/98 it may have been an identifiable occurrence that evoked feelings of substantial distress in Mr Hardman. It is difficult to associate the alleged events at the hospital with the examples in the definition (see paragraph 143 above). However, from the Federal Court decision in O’Neil v Repatriation Commission (2001) 34 AAR 290, which related to a different, but not dissimilarly constructed, definition of “stressful event” for the purposes of SoP 49/94 concerning generalised anxiety disorder, it is the alleged personal reaction of the veteran that is paramount in the definition. There is no objective element required.
146. Mr Ginnane queried, however, whether that part of the SoP factor requiring clinical onset within two years of experiencing the severe psychosocial stressor was made out on the material in this case. He cited Cornelius v Repatriation Commission [2002] FCA 750 at paragraphs 26-28 on clinical onset:
“26 Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression ‘clinical onset’ as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that:
‘… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present….’
“27 By inference the Tribunal rejected the view of ‘clinical onset’ taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression ‘clinical onset’ in clause 5(a) of the SoP. For present purposes, therefore, Professor Sambrook’s opinion that ‘[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993’ (see [8] above) may be disregarded.
“28. The critical issue on this appeal is thus whether there was material before the Tribunal which pointed to the respondent becoming aware, within the period of thirty days from the time when he ceased to undertake the repetitive activities upon which his hypothesis relies, of some feature or symptom which enables a medical practitioner to say that the respondent had carpal tunnel syndrome at that time. Without any such material it cannot be said that the respondent’s hypothesis fits the ‘template’ to be found in clause 5(a) of the SoP. As is mentioned above, the specified maximum time period between the cessation of the repetitive activities and the clinical onset of carpal tunnel syndrome specified by clause 5(a) of the SoP is an element of the factors identified in clause 5(a).”
Mr Ginnane said, correctly, that the onset of depressive disorder should be assessed by identifying the point at which the applicant displayed symptoms that would have enabled a clinician to diagnose a depressive disorder.
147. Mr Ginnane relied on Associate Professor Quadrio’s evidence to suggest that the earliest incident that could possibly suggest depressive disorder occurred in 1969 when Mr Hardman suffered burns in an attempt, so he said, to commit suicide. This, if correct, would mean that the hypothesis connecting Mr Hardman’s operational service with his depressive disorder was unreasonable as not in conformity with the SoP requirements. The onset would have occurred in 1969, four years after the relevant stressor.
148. Mr Colborne indicated the raised facts (paragraph 35 above) as supporting depression as a disease assailing Mr Hardman soon after this alleged incident. The tribunal finds it difficult to see that in the raised facts. Further, on the material before the tribunal the following is evident:
· In T4, an early alcohol questionnaire completed by the applicant, he referred only to stress as a cause of alcohol consumption. There was no reference to depression.
· In the several reports and oral evidence by Dr Lumley there was no opinion expressed as to clinical onset of any depressive condition.
· Dr Gertler (ex A7/2) took a history of excessive drinking beginning in 1969 and of Mr Hardman being depressed in 1972 when he left the navy. He understood alcohol abuse or dependence as having commenced in 1966.
· Psychologist John Hambridge (ex A14) listed a great many of Mr Hardman’s symptoms but none related to depressive illness.
· In ex R2/2 Mr Hardman provided a description of the causes of his suicide attempt but these did not include depression.
· In ex R3, a set of hospital admission notes from 10 July 1977 indicated a diagnosis of acute depressive illness, with nothing to suggest any long term earlier history of that condition.
· Associate Professor Quadrio (ex R16/14, 15) identified depression as present in 1969.
149. This material overwhelmingly suggests a clinical onset of depression no earlier than 1969. This is more than two years after the alleged severe psychosocial stressor. The hypothesis does not, therefore, conform to the SoP template and cannot be a reasonable hypothesis.
150. Factor 5(c), “having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder”, might appear relevant, given that Mr Hardman appeared to suffer from alcohol abuse or dependence from 1966. However, for such a condition to be "clinically significant", clause 8 of the SoP requires that the disease was sufficient to warrant ongoing management. In Mr Hardman’s case he appeared on the available material to receive ongoing management only from 1996, and certainly not from 1967 as the SoP would require. The SoP template is again not satisfied.
151. As the hypothesis connecting Mr Hardman’s depressive disorder with his war service has failed, the depressive illness cannot be a war-caused disease on the basis of the hospital incident.
152. The same result follows in relation to the alleged firing incident. While that may have sufficed as a severe psychosocial stressor it did not, on the material, occur within two years before the clinical onset of Mr Hardman’s depressive disorder.. The hypothesis connecting this incident with depressive disorder is therefore not a reasonable hypothesis. The depressive disorder is not, therefore, a war-caused condition in accordance with this hypothesis.
153. The tribunal could identify no other potential diagnoses that might conceivably assist Mr Hardman in his claim.
DIABETES AND ISCHAEMIC HEART DISEASE
154. As discussed in paragraph 9 above, Mr Hardman claimed in respect of the disabilities of diabetes and ischaemic heart disease.
diabetes mellitus
155. In the applicant’s further facts and contentions dated 4 September 2003 the argument that Mr Hardman’s diabetes mellitus was war-caused was set out in full. First, however, in accordance with the Federal Court’s decision in Fogarty (above), it is necessary to confirm the diagnosis. Dr M Beckhouse, a general practitioner, completed a form dated 5 September 1996 in which he placed the onset of diabetes mellitus as on 20 December 1986 (T9/60). Dr T Singham, a cardiologist, wrote on 25 October 1996 that Mr Hardman had insulin dependent diabetes mellitus (T10/67). Professor O’Rourke (ex R31) wrote that Mr Hardman started treatment for diabetes in 1985. A suggestion of an onset in 1974 appears in T13/81. We find at the level of reasonable satisfaction that Mr Hardman suffers from diabetes mellitus.
156. Applying the Deledio (above) principles to assess causation we find that the hypothesis raised is that:
· Mr Hardman became obese on service, having a BMI of 30 or greater. References to overweight or obesity occur in the T documents dating from 1969 at folios 12, 13, 14, 16, 17, 18, 22, 24, 28 and 29.
· The obesity stemmed from a binge eating disorder which resulted from his war-caused psychiatric condition.
· Mr Hardman was diagnosed with diabetes mellitus in 1974. It became clinically worse over the years with treatment by diet, then tablets and finally by insulin.
· Mr Hardman was obese for at least 10 years before the clinical worsening of his diabetes.
157. The SoP concerning diabetes is 82/99[18] as amended by 9/2001[19] and 91/2001[20].. SoP 91/2001 was promulgated after the primary decision in this matter. On the basis of the Gorton (above) and Williams (above) decisions, if Mr Hardman’s claim fails because of SoP 91/2001, his claim can be reassessed on the basis of the SoPs in force as at the date of the primary decision.
[18] hypothesis connecting Mr Hardman’s operational service with his diabetes will be regarded as reasonable, in accord with step 3 of the Deledio case (above), if the hypothesis accords with the requirements in the SoP. The SoP factor invoked in support of the hypothesis was factor 5(u), “being obese for a period of at least 10 years before the clinical worsening of diabetes mellitus”.
159. Even if the hypothesis in paragraph 156 is applicable at face value, the vulnerable point in the analysis is the proposition that the obesity stemmed from a binge eating disorder which resulted from his war-caused psychiatric condition. The tribunal has found that the psychiatric condition was not war-caused. That therefore means that the binge eating disorder, obesity and, in turn, diabetes, could not be war-caused. The hypothesis is not a reasonable hypothesis. Exclusion of SoP 91/2001 from consideration does not enhance Mr Hardman’s claim.
ischaemic heart disease
160. The tribunal finds that Mr Hardman suffers from ischaemic heart disease (Professor O’Rourke, ex R31). The date of clinical onset was 1996 (ex R31).
161. The hypothesis connecting Mr Hardman’s ischaemic heart disease with service is the pre-existence of war-caused hypertension, diabetes mellitus and war-caused obesity for a period of two years within the 15 years immediately preceding the clinical onset of ischaemic heart disease.
162. There is a SoP concerning ischaemic heart disease, SoP 58/2003[21]. The SoP in force at the date of the primary decision was SoP 38/99[22]. Should Mr Hardman’s claim fail under SoP 58/2003 but succeed when SoP 38/99 is applied he can have the advantage of that anomaly (Gorton (above) and Williams (above)). The relevant factors in the SoP are factors 5(a), (b), (c), (r), (s) and (t) are:
[21] the presence of hypertension before the clinical onset of ischaemic heart disease; or
(b) suffering from diabetes mellitus before the clinical onset of ischaemic heart disease; or
(c) being obese before the clinical onset of ischaemic heart disease; or
…
(r) the presence of hypertension before the clinical worsening of ischaemic heart disease; or
(s) suffering from diabetes mellitus before the clinical worsening of ischaemic heart disease; or
(t) being obese before the clinical worsening of ischaemic heart disease; or
163. In as much as factors 5(a) and (r) rely on Mr Hardman suffering from war-caused hypertension, the SoP on hypertension must be satisfied in accordance with McKenna v Repatriation Commission (1999) 29 AAR 70. The factors in SoP 35/2003[23] concerning hypertension that appear arguable in Mr Hardman’s circumstances are 5(a), (b), (p) and (q):
(a) being obese at the time of the clinical onset of hypertension; or
(b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or
…
(p) being obese at the time of the clinical worsening of hypertension; or
(q) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical worsening of hypertension, or
[23] clinical onset of hypertension occurred in 1996, according to Mr Colborne, however the references he cites for this do not bear it out. The Repatriation Commission in 1997 (T14) accepted that there was at that time a history of hypertension (folio 86). Dr Baz (T54) noted on 26 July 1999 that hypertension was diagnosed many years before. We note, however, that on 7 November 1997 his blood pressure was 125/70, and on 19 July 1999 was 110/80, below the 140/90 required for hypertension in SoP 35/2003. Presumably the hypertension is controlled by medication. Dr Beckhouse identified the hypertension diagnosis as occurring in 1974-1975 (T56/276, 277). The tribunal finds that Mr Hardman’s hypertension had a clinical onset in 1975.
165. The tribunal reiterates its conclusion about obesity – that is that any obesity is not a war-caused condition as its alleged cause, a psychiatric condition, was not itself war-caused.
166. The alternative factor, alcohol consumption, was addressed by Mr Williams in submissions. He submitted that the only material suggesting any difficulty with alcohol came from Mr Hardman himself. There has been no suggestion in any service documents that Mr Hardman had problems with alcohol consumption. The local medical officer’s documents submitted to DVA in 1996 did not record that Mr Hardman suffered from psychoactive substance abuse or dependence involving alcohol despite a prompt to make such a record (T9/60; T13/81). Dr Lumley recorded in 1996 that Mr Hardman drank heavily in the navy (T5) but he did not reiterate this in his 1997 reports (T21; T23). Dr Lumley also failed to refer to any alcohol condition in 1998 when he provided a comprehensive report of psychiatric symptoms after having seen Mr Hardman for over two years each fortnight or month (T48). On 6 July 1999 Dr Gertler, a psychiatrist (ex A7), referred to excessive alcohol consumption by Mr Hardman in both 1966 and 1969 but relied totally on Mr Hardman’s own history in making these references. Dr Baz made no reference to any alcohol symptoms in her 1999 report (T54). It was only in his 2000 claim for a Disability Pension for post-traumatic stress disorder, ischaemic heart disease and diabetes mellitus that Mr Hardman returned to his earlier suggestion of alcohol abuse (T53).
167. While Mr Hardman’s assertion, virtually out of mid-air, that he drank heavily in the navy might suffice to suggest a reasonable hypothesis, conformity with the somewhat precise requirements in factors 5(b) and (q) seems dubious. If Mr Hardman’s alcohol consumption during service and later was as heavy as he suggested the tribunal would expect it to have loomed larger generally in the available material. This may suggest that the hypothesis is fanciful in the terms of the East decision (above). Thus the hypothesis connecting Mr Hardman’s hypertension with his alcohol consumption appears to us to be not a reasonable hypothesis.
168. If we are wrong in this we are prepared to find, in accordance with s 120(1) of the Act, that we are satisfied beyond a reasonable doubt that Mr Hardman did not consume the requisite quantities of alcohol in the relevant periods such as to meet the requirements of the SoP concerning hypertension. We base this on Mr Hardman’s lack of credibility, the lack of any consistent reference in the material to alcohol consumption problems, the lack of any reference to alcohol-related problems in Mr Hardman’s navy records, Mr Hardman’s successive promotions in the navy over an extended period and the lack of any spontaneous reference to alcohol problems in all available medical reports up to 2000 except for a solitary reference in a history taken by Dr Lumley in 1996.
169. The tribunal therefore finds that any hypertension suffered by Mr Hardman is not a war-caused disease. We see no basis for any different finding if the SoP on hypertension in force at the date of the primary decision, SoP 25/99, is considered. The equivalent factors, while expressed differently, create the same problems for a finding in Mr Hardman’s favour.
170. The tribunal, having found that all of Mr Hardman’s conditions, obesity, diabetes mellitus and hypertension, were not war-caused, there is no basis for his ischaemic heart disease to be a war-caused disease (cf paragraph 161 above).
ASSESSMENT
171. Mr Colborne asked that the tribunal also consider whether Mr Hardman qualifies for a Disability Pension payable at the intermediate or special rate under s 23 or s 24 of the Act. We doubt that we have jurisdiction to consider this matter. In his application to the tribunal for review Mr Hardman referred only to the VRB’s decision on whether the three diseases were war-caused as the decision under review. The VRB’s decision to affirm the Repatriation Commission’s decision on payment at only the general rate (decision dated 26 November 1998, T49) was before the tribunal in either application N1998/896 or N1999/263, both of which were decided with the parties’ consent, adversely to Mr Hardman, by the tribunal on 28 November 2000 (T52). However, given the findings we make below, we considered it may be useful to set out our views on this matter.
172. As a result of our earlier findings regarding his diseases Mr Hardman’s only war-caused disability would appear to be bilateral sensori-neural hearing loss with bilateral tinnitus. We note that a series of inconsistent decisions regarding Mr Hardman’s post-traumatic stress disorder and irritable bowel syndrome have been made over the years. In short, he claimed in respect of these diseases on 23 July 1996 (T4). That claim was rejected on 15 January 1997 (T14). The VRB considered Mr Hardman’s application for review of that decision and decided on 20 April 1998 (T39) that the two diseases were war-caused. On 26 April 2000 in Re Hardman (above) this tribunal decided to set aside the VRB’s decision as regards post-traumatic stress disorder and irritable bowel syndrome. However, according to ex A1/1, the respondent has recognised the irritable bowel syndrome as a war-caused disease. We will therefore consider Mr Hardman’s entitlement to intermediate or special rate on the basis that he has the war-caused conditions of bilateral sensori-neural hearing loss with bilateral tinnitus and irritable bowel syndrome along with the conditions of post-traumatic stress disorder, ischaemic heart disease and diabetes mellitus which are not war-caused.
173. If we had jurisdiction we would need to be satisfied at the level of reasonable satisfaction in relation to assessment matters (s 120(4) of the Act).
174. It would be possible to shorten the decision-making process under ss 23 and 24 of the Act if we found that s 23(1)(c) and s 24(1)(c) of the Act are each not satisfied in Mr Hardman’s case. These provisions must be satisfied (subject to several exceptions that do not apply here) if intermediate or special rate is to be paid. Section 23(1)(c), which is virtually identical to s 24(1)(c), reads:
Intermediate rate of pension
23. (1) This section applies to a veteran if:
…
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
…
175. This provision has been interpreted[24] to mean that a veteran must be prevented from continuing to undertake the remunerative work he or she had undertaken because of nothing other than his or her incapacity caused by his or her war-caused injury and/or war-caused disease. If he or she is prevented from continuing to undertake the remunerative work wholly or partly because of an injury or disease that is not war-caused then s 23(1)(c) is not satisfied and intermediate rate is not payable.
[24] Repatriation Commission v Hendy [2002] FCAFC 424 following and applying the court’s approach in Flentjar v Repatriation Commission (1997) 48 ALD 1.
176. There is substantial evidence in this matter concerning the reasons for Mr Hardman’s cessation of employment and the barriers to his resumption:
· In his claim for Disability Pension dated 23 July 1996 Mr Hardman gave as the reason he ceased work as a truck driver, having done the work from 1992 to 1996, was “Dr advised me to stop work due to chest pain” (T4/33).
· On 24 August 1996, in a Department of Veterans’ Affairs employment questionnaire (T8), Mr Hardman said he was “unable to work because of coronary heart and artery disease” and bone erosion disease. He ceased work in February 1996.
· In his claim for a DVA Service Pension on 19 December 2000 (T53) he said that his post-traumatic stress disorder caused him to cease work.
· Dr Baz, an occupational physician, reported on 26 July 1999 (T54) and considered Mr Hardman’s attempt to create a seaweed business which resulted in the production of fertiliser to be full-time work. He ceased this because of the effects of his post-traumatic stress disorder. She regarded the later onset ischaemic heart disease as rendering Mr Hardman unfit for any work.
177. If we had jurisdiction we would be satisfied from this evidence that Mr Hardman is prevented from continuing remunerative employment because of his post-traumatic stress disorder and ischaemic heart disease. These are not war-caused diseases. Both of ss 23(1)(c) and s 24(1)(c) would not satisfied as a consequence of this finding.
178. The ameliorating provisions (ss 23(3)(b) and 24(2)(b)) would not apply for two reasons. One is that Mr Hardman has not been genuinely seeking to engage in remunerative work. Another is that it is not war-caused disabilities that have made Mr Hardman unable to seek and/or obtain remunerative work which he has sought.
179. The tribunal would therefore find. If it had jurisdiction, that Mr Hardman does not qualify for a Disability Pension at intermediate or special rate.
CONCLUSION
180. The tribunal has concluded that none of the three stressful events cited by Mr Hardman as occurring during his operational service has served to permit Mr Hardman’s post traumatic stress disorder or depressive disorder to be accepted as a war-caused disease.
181. Flowing from this the tribunal has found that neither of Mr Hardman’s other claimed conditions, diabetes mellitus or ischaemic heart disease, are war-caused.
DECISION
182. The tribunal affirms the decisions under review.
I certify that the 182 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, Dr P D Lynch, Member and Rear Admiral A Horton, AO, Member
Signed: .......................................................................................
AssociateDates of hearing 13, 16 and 18 December 2002,
18 December 2003
Date of decision 3 March 2004
Counsel for the applicant Mr C Colborne
Solicitor for the applicant Legal Aid Commission of NSW
Counsel for the respondent Mr N Williams, SC, Mr P Ginnane, Ms J Jagot
Solicitor for the respondent Australian Government SolicitorDetails
- AGLC
- Hardman and Repatriation Commission [2004] AATA 220
- Case
- [2004] AATA 220
- Decision Date
CaseChat Overview and Summary
In this case, Hardman, a former member of the Australian Defence Force, sought a review of a decision by the Repatriation Commission, which had determined that he was not entitled to a disability pension for various conditions including post-traumatic stress disorder, depressive disorder, diabetes mellitus, and ischaemic heart disease. The matter was heard by the Administrative Appeals Tribunal, which ultimately affirmed the decision of the Repatriation Commission. The central issue before the Tribunal was whether the Repatriation Commission's determination that Hardman's conditions were not war-caused was legally sound. The Tribunal had to consider whether the Repatriation Commission had correctly applied the standard of proof required under the legislation, specifically whether a reasonable hypothesis could be used to satisfy the burden of proof, and whether this standard was met in this case.
The Tribunal reviewed the evidence and concluded that the Repatriation Commission had correctly applied the relevant legal principles. It was established that the required standard of proof was that the disease was not war-caused to a degree that satisfied the tribunal on the balance of probabilities. The Tribunal further found that a reasonable hypothesis could be used to meet this standard of proof, even if there were some adverse facts. The Tribunal held that the Repatriation Commission had provided a reasonable hypothesis that the conditions were not war-caused, which satisfied the burden of proof. It was noted that the diagnosis of post-traumatic stress disorder was valid even if it did not meet the definition in the relevant Statement of Principles, and that the causal factors in the Statement of Principles applied to post-traumatic stress disorder that did not meet the definition.
The Tribunal's decision hinged on its assessment of the evidence and its interpretation of the relevant legislative provisions and principles. It concluded that the Repatriation Commission's decision was not flawed and was supported by the evidence. The Tribunal did not find that there was any error in the Commission's application of the law or in its assessment of the evidence. Consequently, the Tribunal affirmed the decision of the Repatriation Commission.Orders
Orders of the court
The tribunal affirms the decision under review.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.