House and Defence Force Retirement and Death Benefits Authority
[2010] AATA 147
•26 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 147
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500505
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID RICHARD HOUSE Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date26 February 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............Signed.................
Deputy President
CATCHWORDS
DEFENCE AND WAR – Defence forces – Benefits – Defence Force Retirement and Death Benefits Authority – personality disorder not a prescribed impairment – extent of diminution of capacity to undertake civilian employment attributable to prescribed impairment in the range of 10% to 15% – decision under review affirmed
PRACTICE & PROCEDURE – effect of earlier decision
Defence Force Retirement and Death Benefit Act 1973 (Cth), ss 26, 30, 34
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
House v Department of Defence (1996) 65 FCR 94
Kowalski v Trustee, Mitsubishi Motors Australia Staff Superannuation PtyLtd [2003] FCAFC 18
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 20 ALR 663
Re Greer & DFRDBA [2001] AATA 186; (2001) 63 ALD 282
Re Levin & Defence Force Retirement and Death Benefits Authority (1997) 48 ALD 664
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
REASONS FOR DECISION
26 February 2010 Deputy President P E Hack SC Introduction
The Defence Force Retirement and Death Benefit Act 1973 (Cth) creates a scheme whereby certain members of the Defence Force are entitled, on retirement, to invalidity benefits. The amount of benefit is determined by the respondent, the Defence Force Retirement and Death Benefits Authority, by reference to the extent of incapacity for civilian employment.
The applicant, Mr David House, was a member of the Defence Force until his retirement in May 1975 and has been a “recipient member”, as that expression is used in the Act, for many years. In these proceedings Mr House contends that the Authority has wrongly determined which of his impairments ought to be taken into account in determining his incapacity and has wrongly determined his percentage of incapacity and classification.
This matter is a re-hearing following an appeal to the Federal Court by the Authority. The parties agreed that the evidence ought to include the transcript of the earlier hearing on 2 & 3 July 2007 and certain of the medical reports produced at that hearing. The only “new” evidence comprised two further short statements by Mr House, a report of Dr Philip Morris, a consultant psychiatrist, and brief evidence from Mr House and Dr Morris.
The legislation
By virtue of s 26 of the Act, where a “contributing member” is retired on the ground of invalidity or of physical or mental incapacity to perform duties, the member is entitled, on retirement, to invalidity benefits in accordance with Part V of the Act. Where a member is, or is about to become, entitled to invalidity benefit the Authority is required by s 30 of the Act to make an initial determination of,
“the percentage of incapacity in relation to civil employment and … classify him according to the percentage of incapacity as follows:
Percentage of incapacity Class 60% or more A 30% or more but less than 60% B Less than 30% C
Once that initial determination has been made the Authority may reclassify in accordance with s 34(1) of the Act. That provides:
“(1)The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.”
In determining the percentage of incapacity, the Authority is obliged by s 34(1A) of the Act to,
“have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the recipient member;
(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);
(d) such other matters (if any) as are prescribed for the purposes of this subsection.”
The expression “prescribed physical or mental impairment” is defined in s 34(1B) in these terms:
“(1B)In subsection (1A), prescribed physical or mental impairment, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:
(a)a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b)any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).”
Background
The question of the appropriate classification of Mr House’s incapacities has been the subject matter of several hearings in the Tribunal and appeals to the federal courts. I do not understand what follows to be in issue.
Mr House served in the Australian Army from October 1968 until his discharge in May 1975 on the grounds that his “retention in the Military Forces was not in the interest of the Commonwealth or those Forces”[1]. Some years later the discharge reason was amended[2] to give as the reason for discharge “medically unfit for service”[3].
[1] See s 176(1)(n) of the Australian Military Regulations.
[2] Pursuant to s 44(2), Defence Act 1903 (Cth).
[3] Section 176(1)(h) of the Australian Military Regulations.
The Authority appears to have first considered the extent of Mr House’s incapacity in 1979. It concluded then that Mr House should be classified as Class C, with a percentage of incapacity of 10%, with effect from his discharge. That classification continued thereafter although the percentage of incapacity was increased to 20% in October 1985. Throughout this period the Authority concluded that the prescribed physical or mental impairments which diminished Mr House’s capacity were alcoholism and alcoholic liver disease.
It is next relevant to note the decision of the Tribunal[4], constituted by Bulley J and Members Brumfield and Brennan, in March 1992. The effect of those decisions was to classify Mr House as Class B with 35% incapacity from 16 January 1987 and 40% incapacity from 4 May 1990. One of the issues in the proceedings was whether personality disorder should be included as a prescribed physical or mental impairment in addition to the then accepted impairments of alcoholism and alcoholic liver disease. The Tribunal was not persuaded that it should be included as Mr House had submitted. It said:
“To categorize the personality traits as in combination constituting a personality disorder, being a cogent separate mental impairment is, we think, not justified on the totality of the evidence and the weight we attach to it.”
[4] Re House & DFRDBA (AAT 7856, 20 March 1992).
Mr House remained classified as Class B in a series of decisions during the 1990’s. That classification was maintained in a 2001 decision[5] but the level of incapacity was reduced to 30%. In July 2001 the Authority made a decision (confirmed on reconsideration) that Mr House be classified as Class C on the basis that his percentage of incapacity was 20%. It no longer accepted alcoholic liver disease as an impairment. That decision was affirmed in the Tribunal on 29 June 2004[6].
[5] Re House & DFRDBA [2001] AATA 375.
[6] Re House & DFRDBA [2004] AATA 667; (2004) 83 ALD 792.
Some aspects of the conduct of that hearing, and the decision, need be noticed. First, Mr House was represented by a lay advocate, not a lawyer. There was evidence before that Tribunal from at least two psychiatrists, Dr J Hargreaves and Dr J Redden, that Mr House suffered from a personality disorder as well as alcoholism however it does not seem that any argument was advanced for Mr House (as it was before me) that personality disorder ought be accepted as a prescribed mental impairment. In the subsequent appeal, heard in the Federal Magistrates’ Court, Emmett FM said[7]:
“Further, the Tribunal was not asked to and did not make a finding that personality disorder was part of the incapacity for which the Appellant was retired from the Defence Force. The Appellant did not cavel [sic] with the submission by the Respondent that the only impairments by which the Appellant was retired were alcoholism and alcoholic liver disease.”
The appeal was dismissed.
[7] House v DFRDBA [2004] FMCA 833 at [44].
On 19 November 2004, the day following the dismissal of his appeal, Mr House requested the Authority to review his classification. His request appears to have incorporated a request that his personality disorder and injuries to his arm, sustained in motor vehicle accidents, be accepted as being causally connected with the impairment of alcoholism. On 14 March 2005 the delegate of the Authority rejected the request on the footing that the Authority had previously rejected those conditions as causally related conditions and that that decision had been affirmed by a Tribunal in a decision not disturbed on appeal. The decision was confirmed on reconsideration in a decision sent to Mr House on 1 August 2005. It is the decision, later confirmed on reconsideration, which is the subject matter of this application. The matter was heard and determined by the Tribunal[8], differently constituted, however that decision was the subject of a successful appeal and order for remittal for re-hearing[9].
[8] [2008] AATA 38.
[9] [2009] FCA 302.
The contentions
To date[10], determinations of the extent of Mr House’s incapacity have proceeded on the basis that his sole prescribed impairment was alcoholism. But Mr House wishes to contend in these proceedings that his personality disorder ought to be accepted as a prescribed impairment[11] and that his upper limb impairment, the result of two motor vehicle accidents in 1975 and 1976, and chronic dysthymia ought to be accepted as being “causally connected” with his accepted prescribed impairment of alcoholism[12].
[10] I exclude from this the most recent decision given the successful appeal.
[11] Exhibit 7, paragraph 11.
[12] Exhibit 7, paragraphs 13 and 14.
Mr House contends that these impairments cause total, or a least a large, incapacity to undertake appropriate types of civil employment such that his classification, he says, ought to be Class A.
Additionally Mr House contends that the range of civil employment that he might otherwise reasonably undertake is broader than has previously been accepted by the Authority or in decisions of the Tribunal and should include occupations requiring a degree of mechanical aptitude and the occupation of foreman in any of the other callings which he might otherwise have undertaken.
For its part, the Authority puts these matters very much in issue. But it raises, as well, the argument that the decision under review ought to be affirmed because, putting the matter broadly, nothing is shown to have altered for the worse in Mr House’s capacity for civil employment and thus the Tribunal ought not allow him to re-litigate the matters heard and determined by the Tribunal’s decision in June 2004.
The effect of the previous decision
Having regard to the arguments of the parties it seems to me to be logical to consider first the Authority’s argument about the effect of the earlier Tribunal decision in 2004.
The starting point of the Authority’s argument is the proposition that issue estoppel and cause of action estoppel do not apply to decisions of the Tribunal. I rather think that that states the matter in too absolute terms. In another matter involving Mr House[13] Cooper J observed that the question whether the doctrines of res judicata and issue estoppel apply to proceedings in the Tribunal was a complex and controversial question and, so far as I am aware, the controversy continues[14]. Fortunately I need not decide that question. The Authority argument is based upon the cases that establish that the Tribunal “has the discretion not to ‘re-litigate’ matters that it has decided previously”.
[13] House v Department of Defence (1996) 65 FCR 94, 100.
[14] See e.g. Kowalski v Trustee, Mitsubishi Motors Australia Staff Superannuation Pty Ltd [2003] FCAFC 18 at [12] – [13].
Reference was made to the decision of the Full Court in Morales v Minister for Immigration and Multicultural Affairs[15] where the Court had occasion to consider earlier decisions of the Tribunal and the Court and said:
“…it is important to bear in mind that the function of the AAT is an administrative one. Within the framework of the relevant enactments and the general principles of administrative law, the Tribunal is concerned to determine whether the decision under review ‘was the correct or preferable one on the material before the Tribunal’: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; 24 ALR 577 at 589 per Bowen CJ and Deane J.
To enable the Tribunal to perform its functions, the Tribunal has a very wide discretion as to the procedure it should adopt and as to the manner in which it should inform itself about factual matters. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, O'Connor J, the President of the Tribunal, and Mr Barbour observed (at 526):
‘s 33 of the Administrative Appeals Tribunal Act provides the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself.’
The procedural flexibility that the AAT Act gives to the Tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated (see Comcare Australia v Grimes at 67; 592 per Wilcox J and Re Quinn and Australian Postal Corporation at 525-526), and it has been suggested that s 33 provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it. The point is made by McEvoy (at p 52) by reference to the decision of Senior Member Dwyer and Members McLean and Shanahan in Matusko and Australian Postal Corporation (1995) 21 AAR 9 esp at 20-21 where the Tribunal concluded that although it should not generally allow relitigation of issues already decided, it could use its flexible procedures to allow a second claim in respect of an injury that already had been the subject of a claim.
In our view, the essentially administrative nature of the Tribunal's function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstance that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.”
[15] (1998) 82 FCR 374 at 389 – 390.
The Authority argues that, apart from the date of incapacity, all aspects that I have to decide are identical to the issues decided by the Tribunal in June 2004. It points to the fact that Mr House lodged an application with the Authority to review his condition on the day following the dismissal of the appeal from the Tribunal’s June 2004 decision. This, it says,
“is, in effect, ‘a situation where a decision may be made today and relitigated tomorrow on the very same facts’, a situation considered unjust by O’Connor P in Re Quinn.”
The Authority submits that, in the application of what was decided in Re Quinn, the critical issue to be considered is what has changed since the operative date of the June 2004 decision. Reference is made by the Authority to these observations of O’Connor J and Mr Barbour in Re Quinn[16]:
“It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.”
[16] (1992) 15 AAR 519, 526
Mr House does not dispute the application of these principles. What he says is that, whilst the ultimate issue is identical, he presents different evidence, evidence not before the earlier tribunal, and puts his arguments much wider than those presented to the earlier Tribunal. Thus Mr House relies upon evidence from Ms Christine Schumann, a clinical psychologist, Ms Helen Rowe, an occupational therapist and from Dr Philip Morris, a consultant psychiatrist on the effects of Mr House’s memory loss. That evidence was not before the earlier Tribunal and, importantly evidence of the nature given by Ms Rowe has not been considered before so far as I am aware. Moreover, Mr House seeks to argue for the acceptance of a wider range of prescribed impairments and a wider range of “precluded” occupations.
In my view, it is necessary to examine each of the impairments that Mr House contends are, or ought to be, prescribed impairments and then consider the extent to which Mr House’s capacity for civilian employment is impaired by those impairments in order to determine whether Mr House’s present classification of Class C should be altered.
The prescribed impairments
There are four conditions that Mr House contends ought to be accepted as being prescribed impairments – alcoholism, personality disorder, upper left limb impairment and chronic dysthymia. There is no issue that the first of these conditions is a prescribed impairment. It has been accepted as such by the Authority for very many years.
Whether Mr House’s condition of personality disorder ought to be regarded as a prescribed condition is controversial. That he has such a condition is not in issue. Dr Barbara McGuire, a consultant psychiatrist, in her report of 19 April 2006[17], refers to reports of other psychiatrists going back as far as 1983 that identified Mr House as having a personality disorder. Dr McGuire herself considers that Mr House suffers from a personality disorder. In answer to a question about the relationship between alcoholism and personality disorder she said:
“… it is my opinion that his personality disorder caused him to drink and that the two conditions, that is alcoholism and personality disorder, are so intertwined as to make attempts at teasing them apart at best only an academic exercise.”
[17] Exhibit 6.
Dr Jill Reddan, the other psychiatrist whose evidence is relied upon, agrees that he has a personality disorder and said of the relationship between the conditions that,
“… it’s complicated and it is impossible to state which is the primary problem and which is the secondary.”[18]
[18] Report of 22 June 1997; Exhibit 1 at page 298.
I accept, as Dr McGuire said, that the drinking was caused by the personality. But the legislation requires a determination of the cause or causes “of the invalidity or physical or mental incapacity by reason of which the member was retired”. In Re Greer & DFRDBA[19] Deputy President Forgie said:
“The focus is not upon the invalidity or physical or mental incapacity upon which a person could, or should, have been retired. The focus is upon those invalidities, physical or mental incapacities upon which he was retired.”
Here it is plain that alcoholism was the basis on which Mr House was retired.
[19] [2001] AATA 186; (2001) 63 ALD 282 at [33].
I accept that it is artificial in the extreme to seek to separately consider the two conditions. It seems clear that Mr House’s personality disorder is a long-standing condition and, in all likelihood, pre-dated his discharge from the Australian Army. But it was Mr House’s drinking, categorized as alcoholism, which caused the incapacity that was the reason for his discharge. The drinking may have been the overt
manifestation of the underlying personality but nonetheless the alcoholism was the proximate cause of the discharge. I am, then, not satisfied that Mr House’s personality disorder ought to be accepted as a prescribed impairment.
The medical evidence recognises the difficulties inherent in trying to separate the extent of incapacity arising from alcoholism from that arising from personality disorder however that task is now easier given that Mr House has been abstaining from alcohol for a considerable period of time. In the practical application of the statute to Mr House’s circumstances I propose to first consider the totality of his mental conditions and the extent to which they lead to incapacity for employment before determining whether there is an apparently logical basis for differentiating between the consequences of the two conditions.
I do not regard the earlier history of litigation as precluding that approach. The question was directly raised, and determined unfavourably to Mr House, in the March 1992 decision. But a considerable body of psychiatric evidence has become available since then that throws much more light on the subject. In particular there is the evidence referred to in paragraphs [26] and [27], not available to the earlier Tribunal, of the interconnection between the two conditions. Thus there is no question of re-litigating the matter “on the same facts”.
The issue was in play before the Tribunal in the hearing that led to the June 2004 decision but Mr House was not then represented by a legal practitioner. Where the evidence is before the Tribunal and the matters fully canvassed in the course of the hearing, there is no unfairness in permitting Mr House to argue his case on a wider basis than had been done in the earlier hearing. The Authority did not point to any prejudice to it were the matter to be considered in this way. Indeed it would be quite unfair to prevent Mr House from raising an argument with apparent merit because his lay advocate at the earlier hearing did not do so.
For all that I accept that it is a useful task to compare Mr House’s condition as determined by the June 2004 decision and his condition as disclosed in the evidence before me. There is logic in the Authority’s submission that it is helpful to consider what has changed since that decision, all the more so when the evidence is that Mr House is no longer drinking, is in a stable relationship where he is the carer for his now spouse and undertakes voluntary work on about three days per week. I will discuss those matters in more detail in due course.
The next question is whether Mr House’s upper left limb impairment is a physical impairment “causally connected with” his alcoholism. He contends that it is because it was the consequence of two motor vehicle accidents, both of which involved driving while under the influence of alcohol.
The Authority submits that that question has been determined against Mr House by the June 2004 decision and that that decision ought not to be overturned. There is force in the Authority’s submission that “there is no compelling new evidence before the Tribunal” on the point however I need not decide that question. If I assume, rather than decide, that it is open to Mr House to contend that his upper left limb impairment is causally connected with his alcoholism I would reject his contention.
In Re Levin & Defence Force Retirement and Death Benefits Authority[20] the Tribunal said of the expression “casually connected with” used in an identical context in the earlier legislation, the Defence Forces Retirement Benefits Act 1948 (Cth), that the question was whether “one can be said to be an effect or consequence of the other”. I am content to adopt that test here. I am, as well, satisfied that, were it to be established that on the occasion of each collision Mr House was affected by alcohol, that his driving skills were impaired by the consumption of alcohol and that the collision resulted from that impairment, then the collision, and the subsequent injuries, were causally connected to Mr House’s alcoholism.
[20] (1997) 48 ALD 664 at [89].
But the evidence does not permit me to make those findings. Little is known of the incidents. Both were apparently single vehicle accidents in the sense that no other vehicle collided with that driven by Mr House. Mr House said of the first accident in October 1975 that he was drunk. In the other, in June 1976, his blood alcohol level was tested and he says that it was in the order of 0.18%. The evidence demonstrates a conviction, recorded on 16 August 1976 in respect of an offence committed on 18 June 1976, of being in charge of a motor vehicle whilst under the influence of liquor or a drug. One element of such a charge was a blood alcohol level in excess of 0.15%.
It may be accepted, even absent direct evidence, that alcohol consumption impairs driving ability and may lead to loss of control of a motor vehicle. And a blood alcohol level in excess of 0.15% represents a significant impairment. It seems quite possible that the accidents were caused by the ingestion of alcohol. But the paucity of evidence of the circumstances of the collisions does not allow me to be satisfied that Mr House’s consumption of alcohol on either occasion caused, or contributed to, the collisions. There is simply insufficient evidence to reach any conclusion.
The final condition that needs to be considered is that of chronic dysthymia, described by Dr McGuire as “a chronically low mood”. Mr House contends that it is a stand-alone condition or, in the alternative, that it is part of his personality disorder. Mr House relies upon the opinion of Dr McGuire as supporting not only the existence of the condition but also the necessary connection between alcoholism and the condition. For its part, the Authority relies upon Dr Reddan’s opinion that the history provided to Dr McGuire did not support a diagnosis of chronic dysthemia.
Neither Dr McGuire nor Dr Reddan gave evidence before me and the parties were content for me to rely upon the reports provided and the transcript of their evidence in July 2007. On that basis, I am not satisfied that Mr House suffers from chronic dysthymia. Dr Reddan was not satisfied that the history provided warranted a diagnosis and Dr McGuire agreed that the condition of “chronically low mood” did not reach a clinical level. That evidence does not satisfy me that the condition is capable of being described as a mental impairment.
But beyond that there is simply no explanation in the evidence of any causal connection between Mr House’s chronic unhappiness and his accepted condition.
It follows that I propose to consider the extent of Mr House’s incapacity by reference only to the condition of alcoholism accepting the reality that it may not be possible to differentiate between incapacity attributable to that cause and that attributable to underlying personality disorder.
The extent of incapacity
There has been a tendency, with the evidence in this case, to have the witnesses express conclusions about the percentage of incapacity by reference to particular occupations or otherwise express opinions about the ultimate issue that I have to determine. Thus Dr Reddan has provided an assessment of the extent to which Mr House’s psychiatric impairment has impaired his capacity to undertake particular occupations. Ms Rowe, the occupational therapist, has determined, for the reasons that she has expressed, that Mr House is “not a match” for any of the occupations that she regards as being relevant. As it seems to me, the first step is to consider the evidence that touches upon the question of incapacity arising from prescribed impairments to examine what that evidence says of the relevant consequences to Mr House’s capacity from the impairments.
It seems logical to start by reference to the June 2004 decision which concluded that Mr House’s level of incapacity was 20%. As the Authority points out, it is a notable feature of this case that, on one view, the evidence demonstrates that Mr House’s level on incapacity ought to have reduced rather than increased. He no longer abuses alcohol, he is in a quite stable relationship in which he acts as a carer for his spouse and he performs voluntary work assisting blind people on a regular basis albeit with a recent, brief break . Those matters, it might be thought, suggest a marked improvement rather than a worsening of his capacity.
Nevertheless, it is necessary to look at the evidence that touches upon the question.
The evidence of impairment
As long ago as 1992 Mr House was assessed by Ms Maureen Field, a clinical neuropsychologist. Her report of 21 January 1992 described cognitive impairments in several areas including “significant memory impairment”. A further neurological assessment of Mr House was undertaken by Ms Chris Schumann in March 2007. Her report of 17 April 2007 described Mr House’s memory as being “moderately impaired for immediate recall and learning”. She also noted “a retrieval deficit, which was consistent with his history of chronic alcohol excess”. Her testing indicated the following problems:
“1) Moderate depression,
2) Mildly slow processing speed on some tasks,
3) Mild verbal fluency deficit,
4) Memory problems that included:
a. Moderate retrieval deficit,
5) Executive problems that included:
a. Mild conceptual shifting problems,
b. Mild to severe planning and organising deficit,
c. Mild to moderate visuo-perceptual organization deficit.”
Importantly, Ms Schumann described the test results as consistent with previous neuropsychological assessment in 1992. In her oral evidence from July 2007 Ms Schumann agreed with the proposition that there had been no change between 1992 and 2007.
I should also observe that Dr McGuire commented in her report of 19 April 2006 that there “were no obvious cognitive deficits”. That accords with my observations of him, albeit briefly, in the witness box and in the quality of the written material produced by Mr House. The material demonstrates that Mr House appears quite able to argue his case which he does with a considerable degree of logic and a considerable grasp of the detail of evidence given in hearings going back over 15 years.
The extent of Mr House’s memory deficits were the subject of a more recent report by, and evidence from, Dr Philip Morris, a consultant psychiatrist. Dr Morris said this:
“On examination on various occasions he has been cooperative and showed no obvious distress. His speech shows difficulty with verbal fluency, and with word finding difficulties. His speech is coherent. His affect showed good range and was appropriate. His mood was euthymic. No psychotic features were noted. He does not have any suicidal or homicidal intent now but has had suicidal thoughts in the past. He has been alert on all assessments. His is of average intelligence. His judgement and insight are preserved. Cognitive examination using the Addenbrooke Cognitive Exam revealed problems with verbal memory recall and impaired phonemic verbal fluency. The remainder of his cognitive functions, including attention and orientation, language and visuospatial capacities were impaired. His mini mental state exam score was 29/30 and his ACE-R score was 96/100. Neither indicates dementia.
Computer based neuropsychological testing (Integneuro)(Brain Resource Company) revealed impairments in switching of attention (the trail making test A and B) and verbal interference (the Stroop test), and his verbal memory recall after a short and long delay was well below what would be expected based on his pre-morbid intelligence. These results indicate a mild disturbance of cognition in the areas of attention and concentration, executive function and memory recall that are consistent with his subjective complaints.”
In his oral evidence Dr Morris said that these deficits were not recent and were consistent with heavy consumption of alcohol.
This evidence leads me to conclude that the degree of demonstrable impairment is objectively quite minor and is, at best for Mr House, unchanged over the past few years.
But Mr House relies, as well, on manifestations of his personality that he contends affect his capacity to engage in employment. The matters that are relied upon are the character traits described by Dr Reddan in her report of 22 June 1997 following a consultation with Mr House on 19 June 1997. She said:
“Mr House has difficulty in seeing the points of view of others. His thinking is inflexible and marked by grandiosity and a sense of entitlement. He tends to overstate his case and to project blame onto others for all of his own misfortunes. He thus refuses to accept any responsibility for his situation in life and pursues compensation as part of his drive to prove that others are responsible for any misfortune he has. He is self-absorbed and unwilling to look at the effect of his behaviour on his family. He consciously and determinedly refuses to change.”
In her subsequent report of 15 January 2003, having seen Mr House again on 28 November 2002, Dr Reddan said:
“There have been some shifts in his presentation in that on this occasion he expressed more concern for others and a greater capacity for empathy. He also appeared to have insight into certain aspects of his belief patterns. However, he continues to exhibit paranoid traits and he defends against his low self esteem and feelings of inferiority by some narcissistic defences. He has long been reluctant to accept responsibility and he has been absorbed in self-pity (which he describes as a sense of victimisation) for many years. He has been rigid and inflexible in his thinking, but this has been challenged of recent times. His alcohol use has been self-defeating. “
Dr McGuire generally agreed with this aspect of Dr Reddan’s evidence.
These attributes, it is argued, affect what Ms Rowe described as “soft skills … initiative, communication, team work, ability to problem solve, self-manage, plan and learn”. In this context it is relevant to consider the views of Dr McGuire and Dr Reddan about the effects of the recent changes to Mr House’s life, that is, the cessation of drinking, the commencement and maintenance of a stable relationship and the regular performance of voluntary work. Both doctors said that one of the consequences of Mr House having ceased drinking is that he can no longer be diagnosed as having either alcohol abuse or alcohol dependence, the relevant psychiatric diagnoses. Dr McGuire agreed that the fact of Mr House’s relationship, his role as a carer and his voluntary work was indicative of empathy, care and compassion which “shows somebody who is improving”. Dr Reddan expressed similar views, saying of the lifestyle changes made by Mr House that they reflected “an improvement in his mental state”. She said of the fact of Mr House having ceased drinking in about 2003/2004[21]:
“First of all there is the recovering effects physically on the brain and the improvement of overall competent functioning. If you are not subjecting the brain to a drug that is actually – the central nervous system depresses. So, gradually the brain does recover. Very often it also leads to more stabilisation of moods. Often an improvement in motivation in particular. There is a general decrease in irritability and what we would call dysphoric or unhappy feelings. Alcohol tends to be a drug that over time makes people miserable. You usually find when people have abused alcohol, even if there’s a binge pattern of drinking or it’s intermittent abuse, that their mood improves when they either sip or drink at low levels.
… Again, the effects of that can be very self-sustaining.”
[21] Exhibit 2, page 66.
Dr Reddan has had considerable exposure to Mr House and the matters that afflict him. Whilst she has not seen him of recent times she has had the opportunity to read and consider what others have said of his current condition. The length of her contact leads me to prefer her evidence to that of Dr McGuire, although in reality there is perhaps only a difference of emphasis between them. But Dr Reddan’s evidence, and that of Dr McGuire, satisfies me that the personality traits earlier identified by Dr Reddan would be less marked now that Mr House is no longer drinking and is in a stable relationship. The evidence of Mr House about the timing of these changes is somewhat inconsistent[22] however it would seem, that he had ceased drinking by 2004 and that the relationship with his now wife commenced earlier than that. I am then satisfied that by the time of the present application to the Authority, Mr House was no longer abusing alcohol which had the effect of considerably improving his capacity for care, compassion and empathy as well as leading to an improvement in his “soft skills”.
[22] His evidence initially was that he ceased drinking in 2006 but when reminded that he had told Ms Schumann that he had ceased in 2003 he accepted that he had “probably” told her that.
The kinds of civil employment
There is substantial agreement between the parties about the kinds of civil employment that someone with Mr House’s skills, qualifications and experience might reasonably undertake. Those that Mr House puts forward[23] are driver (including truck, taxi or courier), operator of equipment, plant and machinery, work requiring a mechanical aptitude, work as a sub-contractor in mining or construction, labourer, storeman, security officer and work as a foreman in any of these fields. For its part, the Authority contended[24] that the occupations accepted by the Tribunal’s decision in June 2004, that is, driver, mobile plant operator, labourer, storeperson, mining and construction labourer, and security officer. The differences[25] relate to the capacity of the hypothetical employee to perform the role of a worker undertaking “work requiring a mechanical aptitude” and that of foreman in any of the other occupations. I do not see any real distinction between roles of sub-contractor and labourer in the mining and construction industry. So far as I can discern the work undertaken is similar, all that is different is the employment relationship.
[23] Exhibit 9, paragraph 37. There is some mention in the material, including Ms Rowe’s report, of the occupation of “shot firer” however no reliance appears now to be placed on that occupation.
[24] Exhibit 8, paragraph 8.
[25] I have treated the Authority’s descriptions of “driver” and “mobile plant operator” as synonymous with the similarly described occupations in Mr House’s list.
The question posed at this juncture was described by the Full Court in this way in Defence Force Retirement and Death Benefits Authority v House[26]:
“The tribunal should have asked itself what kinds of civil employment a person with the appropriate skills, qualifications and experience might reasonably undertake, not whether the respondent would in fact have gained employment in particular areas.”
[26] (1989) 22 FCR 138, 143
What then are the “vocational, trade and professional skills, qualifications and experience” of Mr House? He says that he had been a promising student but that he was required by family circumstances to leave school at an early age. He worked as a bicycle mechanic for three years and then as a poultry hand for some 17 months before joining the Australian Regular Army in October 1968. After initial training he was posted to an infantry battalion. He served in the battalion’s assault pioneer platoon after undertaking specialist courses in that role. Those courses taught him skills in demolition and field engineering. Additionally he was trained as a driver. On two occasions Mr House was promoted to lance corporal but was, on each occasion, subsequently demoted because of excessive drinking. He was discharged in May 1975.
After discharge he completed a course which qualified him as a plant operator. During the next 18 months Mr House worked as a factory labourer for three employers. He was next employed for some 13 years by Frigmobile. He started there in November 1976 as a freezer hand undertaking picking work for about four years until he commenced forklift driving. He left that employer in September 1989. He was unemployed briefly and then commenced work in November 1989 with an entity called Bousteads. His tasks there were described as counting and checking screws and drills and boxing them for dispatch. He was later employed within the dispatch section of that employer. He remained employed with that organisation until early 2001. He appears to have left of his own volition. He has not worked since then and is now in receipt of a service pension at the special rate.
There is nothing in this employment history that would suggest that a person with these skills, qualifications and experience might reasonably undertake work requiring mechanical aptitude. The extent of his employment in that sphere is three years experience as a bicycle mechanic. I would not have regarded the tasks of a bicycle mechanic in the mid-1960’s as requiring anything other than a minor degree of mechanical aptitude. The submissions for Mr House suggest that his experience in the Army with demolition “suggests an aptitude to use equipment requiring skill and care.” In my view the skill and care involved in demolition are quite different to those required to demonstrate an aptitude for mechanical matters. I do not accept that employment in areas requiring mechanical aptitude is the type of employment that a person with Mr House’s background might reasonably undertake.
The other area of dispute is whether, as was submitted on his behalf, Mr House was “foreman material”. That, of course, is not the question; it is whether the hypothetical employee with Mr House’s skills, qualifications and experience might reasonably be expected to be employed in a leadership or supervisory capacity. The fact of Mr House’s good results at school, his ability to successfully undertake courses in the Army and the fact of promotion to lance corporal are pointed to as demonstrating the “foreman material” proposition. I am unable to accept the argument. It is to be borne in mind that Mr House’s employment in both the Army and in civilian life was affected by his drinking. That may have prevented him from rising to a supervisory position in both the Army and his civilian employment. I simply do not know anything beyond the evidence of Mr House that he was demoted from lance corporal because of his drinking. The difficulty I have in accepting the submission is that the period of Mr House’s career before alcohol affected his employment is simply not long enough for me to reach a view about the prospect that the hypothetical person with Mr House’s skills, qualifications and experience might have reached supervisory level.
Results at school, without more, do not seem to me to demonstrate leadership or supervisory skills. The same is true of his completion of various courses in the Army. The only matter that I regard as having any possible relevance is the promotion to lance corporal but on the material available to me I am unable to reach any view whether that promotion demonstrates leadership or supervisory capacities. The mere fact of the promotion, without more, does not enable me to draw any conclusion about leadership potential.
The extent of impairment of capacity
The task then is to consider the extent to which Mr House’s capacity within the range of accepted employment activities has been affected by his impairment. That task was described by Brennan J, as President of the Tribunal, in Re Bos and Defence Force Retirement and Death Benefits Authority[27] in this way:
"If there be no incapacity of the relevant kind, a person's talents -- his education, training, skills, physical strength, personality or other attributes -- open to him a range of employment opportunities. The range may cover opportunities for engaging in various kinds of employment, for earning various levels of remuneration and for deriving tangible and other benefits. These are the opportunities which are appropriate to the individual -- his own range of employment opportunities estimated by reference to the talents which, but for the incapacity, he would have had. When he suffers an incapacity, some of these opportunities are denied to him. He suffers an incapacity in relation to civil employment. A comparison between the lost opportunities and the whole range of the individual's employment opportunities provides the measure of his percentage incapacity."
[27] (1977) 20 ALR 663, 666.
Ms Rowe, the occupational therapist, has set out the duties, the personal requirements and the work demands of the various callings that Mr House says are relevant. The Authority does not suggest that this is not an appropriate method of considering the effect of Mr House’s conditions although Ms Rowe’s conclusions rely upon his physical impairments as well as his psychiatric conditions.
In relation to the occupations of delivery driver and truck driver, Ms Rowe identifies the absence of an appropriate class of driver’s licence and lack of experience with customers as impediments to work in those capacities. That may be correct however that is not the consequence of any prescribed impairment. Similarly she identifies his history of drink-driving offences as having a bearing on his capacity for employment as a driver. That may have been so in the past but Mr House has not been drinking for a number of years. She identifies difficulties with lifting and carrying but as I have not accepted the arm injuries as impairments causally related to alcoholism, I am bound to regard Mr House as possessing the physical attributes of a truck driver.
The only difficulties identified that are capable of being attributed to Mr House’s accepted condition of alcoholism is a deficiency in his capacity to plan and to find geographical locations and an inability to relate to customers because of his aggression. I am prepared to accept that the first of these is the consequence of alcoholism and is the manifestation of the memory deficits first reported on by Ms Field in 1992 and more recently by Dr Morris and Ms Schumann. But there is no evidence that they have worsened over time and the effect of them on Mr House’s capacity to undertake employment in this field seems likely to be quite minor. He regularly drives his partner to appointments and does not, himself, report any difficulties in finding his way around. The other difficulty identified, that of aggression, seems more likely to be the consequence of Mr House’s personality disorder. But, as Dr Reddan observed, Mr House is quite capable of controlling his emotions. Moreover, there is evidence of considerable maturation on the part of Mr House from 2004 onwards.
These matters, even taken together, suggest that the extent of any impairment to Mr House’s capacity to undertake truck driving employment of any type is minimal at best.
The next occupational category is that of driver, mobile plant, which I take to be the same as the Authority’s category of mobile plant operator. Ms Rowe identifies some of the irrelevant difficulties discussed above. The only relevant difficulty is a claimed inability on Mr House’s part to work as part of a team. Mr House identified to Ms Rowe episodes of aggression in the workplace on his part and a warning from his employer. The letters he relies upon form part of the s 37 documents. I hardly think that an occasional incident of aggression in the workplace should lead to the conclusion that Mr House had difficulty working as part of a team. It is to be borne in mind that he was a long-term employee in two workplaces and left both employers of his own accord. His longevity seems to me to be inconsistent with the notion of having difficulties working as part of a team.
It is not apparent to me how this difficulty could be regarded as being attributable to Mr House’s alcoholism however even if be assumed that it was I regard the extent of reduction of Mr House’s capacity for employment of this type to be minimal at best.
Next Ms Rowe considered the occupation of storeman. Her comment on this occupation included the following:
“Concern re workplace health & safety due to history of aggression, difficulty taking orders from supervisors, interpersonal communication skills, poor interpersonal/social skills in workplace.”
I see nothing in the evidence that would warrant that conclusion. I do not regard the evidence cited by Ms Rowe as supporting the conclusion she reached, again, all the more so having regard to the changes in Mr House’s behaviour and temperament since 2004. The reduction in capacity is minimal.
The identical comment is made in reference to the next occupational category, that of labourer in the building industry. Although Ms Rowe refers only to the building industry, I would treat the occupational group as labourer within the construction or mining industry. For the reasons set out above I am satisfied that any impairment of capacity would be minimal.
The next occupation is that of security officer. Ms Rowe identifies several matters that are unrelated to Mr House’s prescribed impairment including an absence of qualifications and of customer service experience. Those difficulties that are arguably relevant are the impaired cognitive capacity to learn and gain qualifications, the possibility that Mr House’s criminal record would preclude him from obtaining the appropriate licence, the possibility of Mr House’s aggression causing difficulties in dealing with the public and the absence of good communication and negotiation skills.
The cognitive impairment was described by Dr Morris as “mild” but it is attributable to alcoholism. The source of the requirement for what Ms Rowe identifies as a “police check” was not identified. I take it to be the Security Providers Act 1993 (Qld). That Act requires security providers, which includes the particular occupations of bouncer, security guard, security provider and watchman nominated by Ms Rowe, to hold a licence under that Act. One of the requirements for the grant of a licence is that the applicant be “an appropriate person to hold the licence”[28]. In making that determination one of the matters to be considered is whether the applicant has been convicted of an offence. However the width of that criterion is narrowed somewhat by s 11(5) of the Act which deems a person not to be an appropriate person if the person has been convicted, within 10 years of applying for a licence, of a “disqualifying offence”. Mr House has been convicted of offences that satisfy that description – the offence of assault occasioning bodily harm in September 1989 and that of serious assault on a police officer in February 1994 – but both these offences are outside the period of 10 years.
[28] See s 11(2)(c), Security Providers Act 1993 (Qld)
There is then no absolute impediment to Mr House obtaining a licence although I accept that there is a risk that his criminal record may tell against him. I accept, as well, that his cognitive deficits might make more difficult the task of successfully completing the approved training course required by the Security Providers Act. I would accept, as well, that Mr House’s “aggression” might have a minimal effect on his capacity to undertake work of this type. I am unable to accept that Mr House lacks good communication and negotiation skills or that if he did that that was attributable to his prescribed impairment. Mr House was an articulate and capable witness before me and, judging from the transcript of the earlier hearing, on that occasion also. He has consistently produced documents that demonstrate a detailed and logical grasp of the factual and legal issues involved in his proceedings.
There is, I accept, a greater degree of reduction of Mr House’s capacity to undertake employment in this field that exists in relation to the other categories considered so far but I would still regard the extent of it as quite modest.
The result is that in the majority of the occupational groups there is, at best, a minimal reduction in Mr House’s capacity to undertake employment in those areas. If required to attribute a percentage to the reduction I would put it no higher than 10%. Within the category of security officer, the reduction is a little higher, perhaps as high as 20%. Overall I consider that the extent of the diminution of Mr House’s capacity to undertake civilian employment attributable to his prescribed impairment is in the range of 10% to 15%. That accords, as it happens, with the observable improvement in Mr House following the last decision of the Tribunal in June 2004.
I am then not satisfied that Mr House’s classification should be altered. I would affirm the decision under review.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .........Signed........................................
AssociateDates of Hearing 18 January 2010
Date of Decision 26 February 2010
Counsel for the Applicant Mr A Harding
Solicitors for the Applicant Woods Prince
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
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