FEDERAL COURT OF AUSTRALIA
O’Dowd v Repatriation Commission [2013] FCA 991
Citation: O’Dowd v Repatriation Commission [2013] FCA 991 Appeal from: O’Dowd v Repatriation Commission [2012] AATA 789 Parties: PETER DAVID O'DOWD v REPATRIATION COMMISSION File number: VID 1057 of 2012 Judge: MARSHALL J Date of judgment: 1 October 2013 Catchwords: ADMINISTRATIVE LAW – veterans’ entitlements – review of decision of the Administrative Appeals Tribunal – whether the Tribunal erred in deciding the applicant did not suffer from post-traumatic stress disorder – war-causation aspect of the Tribunal’s decision not challenged on appeal – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 s 5DCases cited: Guy v Repatriation Commission [2005] FCA 562
Hoskins v Repatriation Commission (1991) 32 FCR 443
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Warren (2007) 95 ALD 606; [2007] FCA 866
Woodward v Repatriation Commission (2003) 131 FCR 473Date of hearing: 20 September 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Applicant: Ms L Martin Solicitor for the Applicant: Williams Winter Counsel for the Respondent: Ms C Dowsett Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1057 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: PETER DAVID O'DOWD
ApplicantAND: REPATRIATION COMMISSION
RespondentJUDGE:
MARSHALL J
DATE OF ORDER:
1 OCTOBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the respondent’s costs of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1057 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: PETER DAVID O'DOWD
ApplicantAND: REPATRIATION COMMISSION
Respondent
JUDGE:
MARSHALL J
DATE:
1 OCTOBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
Mr O’Dowd appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal decided that Mr O’Dowd did not suffer from post traumatic stress disorder (“PTSD”). It also decided that if it was wrong in so deciding, such PTSD was not war-caused.
The Amended Notice of Appeal filed on behalf of Mr O’Dowd only addresses the first question which the Tribunal answered. It does not deal with the second question the subject of the Tribunal’s decision, which was referred to by the Tribunal at [85] of its reasons for decision in the following terms:
Assuming I am incorrect about the diagnosis of a mental disorder, I have nevertheless examined Mr O’Dowd’s claim regarding PTSD in order to determine whether there exists a causal connection between his operational service and that disorder. I have found that there is no causal connection because I cannot accept the raised facts due to the unreliability of the evidence which Mr O’Dowd claimed to…
Continue reading O'Dowd v Repatriation Commission
Sign in free to access the full text
Details
- AGLC
- O'Dowd v Repatriation Commission [2013] FCA 991
- Case
- [2013] FCA 991
- Decision Date
CaseChat Overview and Summary
In the case of O'Dowd v Repatriation Commission, the Federal Court of Australia reviewed the decision of the Administrative Appeals Tribunal (AAT) concerning the veteran's claim for post-traumatic stress disorder (PTSD) related to his service in Vietnam. Mr O'Dowd appealed the AAT's decision that his PTSD was not related to his war service. The Court was tasked with determining whether the AAT erred in its assessment of Mr O'Dowd's PTSD claim, specifically if the Tribunal misapplied the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria and whether it assessed the correct emotions in response to the alleged stressors.
The primary legal issue addressed by the Court was whether the AAT erred in its application of the DSM-IV criteria to Mr O'Dowd's PTSD claim. The Court examined if the Tribunal correctly interpreted the phrase "confronted with" in Criterion A(1) of the PTSD definition and whether it appropriately evaluated Mr O'Dowd's emotional responses to the alleged stressors. The Court also considered whether the Tribunal identified the correct issue or asked the wrong question when assessing Mr O'Dowd's feelings of helplessness and horror in response to a specific event during his service.
The Court found that the AAT did not err in its application of DSM-IV. The Tribunal correctly interpreted the phrase "confronted with" within the context of the introductory paragraph of DSM-IV, consistent with the reasoning in Seedsman. The Court also determined that the Tribunal did not err in finding that Mr O'Dowd's response to the Subic Bay hospital visit did not involve "intense fear, helplessness, or horror." The Tribunal's findings were based on the evidence presented and were not inconsistent with the judgment in Guy v Repatriation Commission. Consequently, the Court rejected all grounds of appeal and dismissed the application.
The Court ordered that the application be dismissed and that Mr O'Dowd pay the respondent's costs of the application, in accordance with Rule 39.32 of the Federal Court Rules 2011.
The primary legal issue addressed by the Court was whether the AAT erred in its application of the DSM-IV criteria to Mr O'Dowd's PTSD claim. The Court examined if the Tribunal correctly interpreted the phrase "confronted with" in Criterion A(1) of the PTSD definition and whether it appropriately evaluated Mr O'Dowd's emotional responses to the alleged stressors. The Court also considered whether the Tribunal identified the correct issue or asked the wrong question when assessing Mr O'Dowd's feelings of helplessness and horror in response to a specific event during his service.
The Court found that the AAT did not err in its application of DSM-IV. The Tribunal correctly interpreted the phrase "confronted with" within the context of the introductory paragraph of DSM-IV, consistent with the reasoning in Seedsman. The Court also determined that the Tribunal did not err in finding that Mr O'Dowd's response to the Subic Bay hospital visit did not involve "intense fear, helplessness, or horror." The Tribunal's findings were based on the evidence presented and were not inconsistent with the judgment in Guy v Repatriation Commission. Consequently, the Court rejected all grounds of appeal and dismissed the application.
The Court ordered that the application be dismissed and that Mr O'Dowd pay the respondent's costs of the application, in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application is dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Notwithstanding the obvious difficulties for Mr O’Dowd which flow from the Tribunal’s reasoning on the second aspect of its decision, the current appeal focuses entirely on the first issue. As it was the subject of argument, the Court will deal with it. However, in the event that the Court is wrong in its conclusion that no error is disclosed in the Tribunal’s reasoning on the first question, the appeal should nevertheless be dismissed, as its conclusion on the second question was not challenged.Background The veteran, Mr O’Dowd, enlisted in the Royal Australian Navy on 16 March 1963. He had operational service in Vietnam between 20 March 1969 and 13 October 1969 on board the HMAS Brisbane. On 22 October 2009, Mr O’Dowd lodged a disability pension claim with the Department of Veterans’ Affairs. On 10 June 2010, a delegate of the Repatriation Commission informed Mr O’Dowd that the Commission had accepted his claims for hearing loss, tinnitus and solar keratosis but decided that his claimed PTSD, rosacea and asthma were not related to his war service. Mr O’Dowd was granted a disability pension at 40 per cent of the general rate with effect from 22 July 2009. On 17 June 2010, Mr O’Dowd lodged an application for review with the Veterans’ Review Board. On 18 February 2011, the Board consented to the withdrawal of Mr O’Dowd’s application for review regarding his asthma but affirmed the Repatriation Commission’s decision regarding his claim for PTSD and rosacea. The Board determined to increase his disability pension from 40 per cent to 50 per cent of the General Rate with effect from 25 November 2010. In March 2011, Mr O’Dowd lodged with the Tribunal an application for review of the decision of the Veterans’ Review Board. On 14 February 2012, the Repatriation Commission accepted, in its statement of facts and contentions, that Mr O’Dowd’s rosacea was war-caused, with effect from 22 July 2009. Therefore, the only remaining questions for the Tribunal were (a) whether Mr O’Dowd had PTSD and (b) if so, whether that condition was war-caused. On 13 November 2012, the Tribunal affirmed the decision of the Veterans’ Review Board made on 18 February 2011 regarding PTSD. Mr O’Dowd appealed the Tribunal’s decision to this Court on 11 December 2012. The stressors Mr O’Dowd relied on the occurrence of two events in 1969 which he alleged to be extreme traumatic stressors which led to him suffering PTSD. The first stressor, in chronological order, occurred in May 1969. At that time, Mr O’Dowd claimed to have visited a hospital at Subic Bay in the Philippines whilst on recreation leave. Together with other servicemen, Mr O’Dowd visited the children’s ward of the hospital. There, he saw a young girl in a wheelchair with both legs amputated below the knees and her legs wrapped in bandages. Dr Kaplan, a psychiatrist called on behalf of Mr O’Dowd, described Mr O’Dowd’s response to seeing that girl in the following way, as recorded by the Tribunal at [24] of its reasons for decision:He stated that he experienced a sense of helplessness and horror. He commented, “I put two and two together and realised that this is the sort of carnage we’re doing there…some bloody awful things.” He stated that many of the children were seriously wounded and he commented, “I think the children were the biggest upset on me.”
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The Tribunal was mindful of the approach in Warren and discussed the guideline nature of DSM-IV at [18] of its reasons for decision. However, the respondent’s counsel submits that even if DSM-IV required a strict construction, the Tribunal did not err. In so doing, counsel refers to a judgment of the Court of Appeal of the Supreme Court of New South Wales in New South Wales v Seedsman (2000) 217 ALR 583. In Seedsman, at [112] and [124], Spigelman CJ referred to the need for a person to experience an event causing injury or death, unless the event involves a family member or close associate. Counsel submits that the Tribunal’s discussion of Mr O’Dowd’s alleged stressors at 38[a] is consistent with the observations of Spigelman CJ in Seedsman.Conclusion on “confronted with” The Court accepts the respondent’s contention that the Tribunal did not err in its application of DSM-IV to Mr O’Dowd in the context of the two stressors alleged to have affected him by reason of being confronted with them. The Tribunal was entitled to read the words “confronted with” in Criterion A(1) in the context of the introductory paragraph to DSM-IV. So much is consistent with Seedsman. That case involved an analysis of DSM-IV, whereas the case of Woodward involved statutory construction. Questions 1 and 2 of the questions of law in the Amended Notice of Appeal should be answered in the negative and Ground 2 should be rejected.Wrong question – Subic Bay Questions 3 and 4 of the questions of law raised by the Amended Notice of Appeal ask whether the Tribunal identified a wrong issue or asked itself the wrong question in assessing whether Mr O’Dowd experienced:·Helplessness in response to the Subic Bay hospital event·Horror in response to the Subic Bay hospital event These questions relate to Ground 3 of the Amended Notice of Appeal which contends that the Tribunal erred in finding that Mr O’Dowd’s response to the Subic Bay event did not invoke “intense fear, helplessness or horror” within the meaning of Criterion A(2) of the definition of PTSD in DSM-IV. Whether Mr O’Dowd felt helpless in response to the Subic Bay hospital event was a question of fact for the Tribunal to determine. It did so at [48] of its reasons for decision where it found that Mr O’Dowd “did not feel helpless because his actions clearly indicate he thought he could help”. The Tribunal earlier observed that Mr O’Dowd and fellow sailors went to purchase books to read to the children. Such a finding was open to the Tribunal on the evidence before it. Also at [48], the Tribunal rejected the suggestion that Mr O’Dowd experienced horror at the hospital in Subic Bay. The Tribunal preferred the evidence of another psychiatrist, Dr Seabridge, that the response of Mr O’Dowd was one of being “overwhelmed, dissociating and unable to move” as distinct from one of horror. That finding of fact was available to the Tribunal. Ground 3 of the appeal is therefore rejected. The Tribunal did not err in finding that Mr O’Dowd’s response to the Subic Bay hospital visit incident did not involve “intense fear, helplessness or horror”. Counsel for the applicant refers to Guy v Repatriation Commission [2005] FCA 562 at [20] where the Court held that the correct approach for a Tribunal to take in considering the response of a veteran to a relevant event is to ask whether the event “might, or could possibly, evoke the relevant emotions”. There was nothing in the Tribunal’s decision which conflicted with the judgment in Guy. It is inherent in the reasons of the Tribunal that it considered the Subic Bay hospital event to be incapable of evoking the relevant emotions in Mr O’Dowd.Question of law no 5
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.