Rayson v Repatriation Commission

[2012] FCA 648

FEDERAL COURT OF AUSTRALIA

Rayson v Repatriation Commission [2012] FCA 648

Citation:		Rayson v Repatriation Commission [2012] FCA 648
Appeal from:		Rayson and Repatriation Commission [2011] AATA 233
Parties:		RACHEL MARINA RAYSON v REPATRIATION COMMISSION
File number:		VID 360 of 2011
Judge:		BROMBERG J
Date of judgment:		21 June 2012
Catchwords:		DEFENCE AND WAR – veterans’ affairs – entitlement to pension – whether finding that veteran did not suffer from Post Traumatic Stress Disorder erroneous – standard of proof – whether the standard of proof in s 120(1) of the Veterans’ Entitlements Act 1986 (Cth) applies to determination of whether veteran suffered from Post Traumatic Stress Disorder– whether failure by Tribunal to identify all available hypotheses in determining whether incapacity was war-caused – appeal dismissed
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) s 44 Veterans’ Entitlements Act 1986 (Cth) ss 13(1)(b), 120(1), 120(3), 120(4), 120A
Cases cited:		Repatriation Commission v Smith (1987) 15 FCR 327 Repatriation Commission v Deledio (1998) 83 FCR 82 Mines v Repatriation Commission (2004) 86 ALD 62 Benjamin v Repatriation Commission (2001) 70 ALD 622 Repatriation Commission v Budworth (2001) 116 FCR 200 Repatriation Commission v Cooke (1998) 90 FCR 307 Repatriation Commission v Warren (2008) 167 FCR 511
Date of hearing:	6 February 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	42
Counsel for the Applicant:	Mr D De Marchi of De Marchi & Associates
Counsel for the Respondent:	Mr R Niall SC
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 360 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	RACHEL MARINA RAYSON Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	21 JUNE 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs of the appeal.

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 360 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	RACHEL MARINA RAYSON Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	BROMBERG J
DATE:	21 JUNE 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The late Mr Stanley Rayson (“the veteran”) lodged a claim for a pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Veterans’ Entitlements Act”). The respondent (“the Repatriation Commission”), refused to accept his claim. That decision was affirmed by the Veterans Review Board. The veteran then applied to the Administrative Appeals Tribunal (“the Tribunal”), where the veteran’s claim was continued by the applicant (“Mrs Rayson”) as the veteran’s legal personal representative. The Tribunal rejected Mrs Rayson’s application, and in light of that rejection, Mrs Rayson has brought this proceeding by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

2. The veteran was born on 21 March 1932.  He served as a cook and a gunner with the Royal Australian Navy (“the RAN”). His operational service included two tours of duty in North Korea during the Korean War.  Relevantly, whilst on operational service and serving on the HMAS Tobruk, the veteran experienced three events of significance to his claim that he was incapacitated from Post Traumatic Stress Disorder (“PTSD”) and from a depressive disorder.

3. The first of the three incidents relied upon related to the veteran being locked in a refrigerator.  The second incident (“the illumination incident”) occurred at night when the Tobruk was illuminated by shells intended to illuminate its land-based target, but which instead fell short and illuminated the Tobruk itself.  That error exposed the Tobruk to enemy fire. The third incident related to the veteran witnessing the destruction of a sampan involving the death of or serious injury to, those on board (“the sampan incident”).

4. To succeed in the appeal, Mrs Rayson must establish that the Tribunal’s decision is compromised by an error of law.  In that context and with that onus, the grounds of appeal upon which Mrs Rayson relies raise the following questions for determination:

   (i)Was the Tribunal wrong to find that the veteran did not suffer from PTSD?

   (ii)Did the Tribunal apply the wrong standard of proof for PTSD? and

   (iii)Did the Tribunal fail to identify and consider all available hypotheses for connecting the veteran’s Major Depressive Disorder to his war service?

   THE LEGISLATIVE FRAMEWORK

5. It is best to commence by identifying the legislative scheme which controlled the task which confronted the Tribunal. Section 13(1)(b) of the Veterans’ Entitlements Act required the Tribunal to accept Mrs Rayson’s claim for a pension, if the veteran was incapacitated from a war-caused injury or a war-caused disease. The Tribunal’s satisfaction of whether the veteran suffered an incapacity – in this case either PTSD or a depressive disorder – is ordinarily to be determined on the balance of probabilities in accordance with the standard of proof specified by s 120(4). I am mindful, however, that an issue arises in this appeal, as to whether s 120(4) provides the appropriate standard of proof in relation to a claim of PTSD.

6. If satisfied that the veteran suffered from an incapacity, the Tribunal was then required by s 120(1) to conclude that the veteran’s incapacity was war-caused, unless the Tribunal was “satisfied, beyond reasonable doubt, that there [was] no sufficient ground for making that determination”. Section 120(3) together with s 120A prescribe the circumstances upon which such a determination may be made. These were that on the basis of the “whole of the material before it” the Tribunal was of the opinion that the material did not raise a “reasonable hypothesis” connecting the injury or disease with the circumstances of the particular service rendered by the veteran. A hypothesis connecting the injury or disease with the veteran’s service, was only to be regarded as reasonable by the Tribunal if there was in force a delegated instrument known as a “Statement of Principles” (“SoP”) that upheld the hypothesis.

   CONSIDERATION

   The Tribunal’s finding that the Veteran did not suffer from PTSD

7. The Tribunal considered, but did not accept that the veteran suffered from PTSD.  By appeal ground 4.1, the applicant challenges that finding.

8. As its name suggests, PTSD is a disorder which results from a person having experienced a traumatic event or events.  Like all disorders, PTSD is also characterised by its recognised symptoms.  There are therefore two basic inquires to be made when determining whether a person has PTSD.  The first concerns whether the person was exposed to a sufficiently traumatic event or events.  The second looks to whether the exposure to trauma has been manifested in the recognised symptoms for PTSD.  Such an approach may be seen from the SoP for PTSD (No 5 of 2008), which Mrs Rayson relied upon.

9. In relation to the first inquiry, the SoP for PTSD inquires as to whether 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.

10. At [109] of the Tribunal’s decision (“the decision”), the Tribunal found that the veteran was not suffering from PTSD.  Mrs Rayson challenges that finding on the basis of findings made by the Tribunal at [94] and [96] of its decision.  At [94], the Tribunal addressed the sampan incident and made a finding that the veteran had not experienced intense fear, helplessness or horror.  Although not specifically stated, it seems clear that the Tribunal had in mind the criteria in the SoP for PTSD set out above.  At [96] of the decision, the Tribunal addressed the illumination incident and made a finding that the veteran’s reaction was not one of intense fear, helplessness or horror. 

11. I accept there is room for criticism of the findings made at [94] and [96], and in particular of the finding that the illumination incident did not result in a reaction of intense fear.  It is hard to understand from the reasons given, how the Tribunal came to the view that the veteran had experienced fear but not intense fear.   

12. However, on a fair reading of the Tribunal’s decision as a whole, it is apparent that the focus of the Tribunal’s refusal to make a finding of PTSD was an absence of the requisite symptoms for a diagnosis of PTSD.

13. The conflict in the medical evidence before the Tribunal was largely focused on whether or not the veteran suffered from the symptoms necessary for a diagnosis of PTSD.  In that respect, Dr D’Ortenzio rejected a diagnosis of PTSD because the veteran had no history of any avoidance behaviour or persistent symptoms of hyperarousal, such that a diagnosis of PTSD could be made. 

14. The Tribunal was obviously impressed with Dr D’Ortenzio’s diagnosis, including because of the more comprehensive history taken by him of the veteran’s circumstances and the application of those circumstances to the doctor’s analysis.  The medical evidence which the Tribunal referred to and upon which it relied (see [107] and 109]) rejected the diagnosis of PTSD, not because of an absence of the required reaction for such a diagnosis but because of the absence of the requisite symptoms required for a diagnosis of PTSD.  The Tribunal’s reliance upon that evidence was not challenged. Even if Mrs Rayson’s criticism of the findings made at [94] and [96] are well-founded, the challenge made by her is insufficient in its scope to establish that the ultimate finding of the Tribunal was erroneous, let alone that it involved an error of law. 

15. I therefore must reject this ground of Mrs Rayson’s appeal.

    Which Standard of Proof applies to PTSD?

16. In support of ground 4.2 of her appeal, Mrs Rayson contended that whether or not the veteran suffered from PTSD was to be determined by the application of the s 120(1) standard of proof and not on the basis of the standard laid down by s 120(4). If the Tribunal had done that, Mrs Rayson says that the Tribunal would have been satisfied that the veteran suffered from PTSD.

17. Mrs Rayson accepts that in the ordinary case the standard of proof to be applied in determining whether a veteran is incapacitated from a particular injury or disease is that contained in s 120(4). That is, the decision-maker must decide that issue “to its reasonable satisfaction”, a phrase which the authorities have interpreted to mean on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335. Mrs Rayson contended, however, that PTSD was a special case and that the existence of PTSD was to be determined by reference to the standard in s 120(1).

18. As I will explain, this contention is misconceived and contrary to Full Court authority.

19. Section 120(1) provides for a reverse beyond reasonable doubt standard of proof. As I have outlined already, it operates in conjunction with s 120(3) and s 120A. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the Full Court set out a four step process a decision-maker is required to take in assessing the connection between a veteran’s incapacity and his or her operational service, by reference to whether a reasonable hypothesis was raised on the material. The Full Court (Beaumont, Hill and O’Connor JJ) said:

    1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

    2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

    3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

    4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

20. Relying on the first of the Deledio steps, Mrs Rayson contended that when a veteran suffers from PTSD, the decision maker is to determine whether the injury exists, on the balance of probabilities, except that in making that determination, the decision-maker need only be satisfied that the material raises a reasonable hypothesis that points to the existence of stressful events that occurred during the veteran’s operational service.  Thereafter, so the argument went, each of the Deledio steps are to be applied.

21. Mrs Rayson’s approach misconceives the subject-matter dealt with by s 120(1) and the basis upon which the first of the Deledio steps is founded.  As Gray J said in Mines v Repatriation Commission (2004) 86 ALD 62 at [37]:

    At the outset, one point needs to be understood.  The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned.  The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service.  The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other.  There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified.  Their identification is not one of the steps referred to in Deledio. 

22. Further, as the Full Court (Moore, Emmett and Allsop JJ) said in Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54] (following the authority of an earlier Full Court in Repatriation Commission v Budworth (2001) 116 FCR 200 at [15]):

    Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act (footnote omitted).

23. As Gray J further observed in Mines at [47] and [48]:

    It should be noted that Benjamin was a case involving a suggestion that the veteran suffered from PTSD.  At [58], the Full Court noted that the tribunal had applied the correct standard by concluding that it was not reasonably satisfied that the veteran was suffering from PTSD.

    It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, that is, on the balance of probabilities. 

24. The Full Court authorities to which I have referred and upon which Gray J relied are on point and are binding.  Mrs Rayson’s case had far more to do than convince me that Mines was incorrectly determined, as her Counsel sought to do. 

25. There is, however, a further aspect of Mines (not relied upon by Mrs Rayson) where some support may be found for the rationale underpinning her contention.  In Mines, Gray J recognised, correctly in my view, that PTSD is an example of an injury in which the very question of whether the injury has been suffered may be bound up with the question of the connection to war service. As Gray J said at [39]:

    …It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event…

26. His Honour observed at [50] that the policy underlying s 120 of the Veterans Entitlements Act, referred to by the Full Court in Repatriation Commission v Cooke (1998) 90 FCR 307, was “that the reverse beyond reasonable doubt standard of proof should apply to the determination of the facts of war-time events, which might have occurred many years before the decision is made, and for which records might be incomplete”.

27. By reference to that policy, Gray J reasoned that where a finding that a veteran suffered from PTSD was dependent upon the question of whether the veteran suffered a traumatic event during his operational service, the decision-maker may be required to apply the Deledio process of reasoning in determining whether the injury is connected with the particular service rendered by the veteran. Gray J explained at [52] that:

    If the tribunal was not satisfied on the balance of probabilities that the applicant suffered from PTSD, it was therefore necessary for the tribunal to decide whether he was suffering from a collection of symptoms amounting to a disease, without necessarily attaching a label to that collection.  The tribunal was obliged to decide this question to its reasonable satisfaction, that is, on the balance of probabilities.  If it found that the applicant was suffering from such a collection of symptoms, the tribunal was then bound to apply the four steps of reasoning referred to in Deledio.  It was bound to consider whether the material pointed to a hypothesis, connecting the collection of symptoms with the circumstances of the particular service.  The tribunal was then to look at any relevant SoP, to see whether the hypothesis fitted the ‘template’ in an SoP, for the purpose of determining whether the hypothesis was a reasonable one.  If so, the tribunal was bound to determine whether the material excluded the hypothesis beyond reasonable doubt, because the facts upon which the hypothesis depended did not exist…

28. I need not enter upon a consideration of the correctness of the approach suggested by Gray J in Mines. I am particularly reluctant to do so in the absence of full argument. Even if his Honour’s approach is correct, the foundational circumstances upon which that approach depends do not exist in this case. For the reasons given at [12] to [14], this is not a case where, but for the decision-maker’s satisfaction as to whether the veteran experienced a traumatic event during his operational service, a finding of PTSD would have been made.

1. This ground of appeal must also be rejected.

   Did the Tribunal fail to identify all available hypotheses?

2. The Tribunal accepted that the veteran had suffered from a Major Depressive Disorder (at [110]) of the decision). The Tribunal then turned to consider whether that injury was a war-caused injury. In doing so, the Tribunal applied the s 120(1) standard and the Deledio steps. It did so by reference to the hypothesis that the veteran’s Major Depressive Disorder was attributable to one of the three incidents described at [3]. The Tribunal considered that hypothesis and assessed its reasonableness by reference to the applicable SoP for depressive disorder. The Tribunal determined that the hypothesis was not consistent with the SoP and that therefore the hypothesis was not reasonable. As a consequence, the Tribunal was not satisfied that the veteran’s depressive disorder was a war-caused injury or disease.

3. The reason given by the Tribunal for its rejection of the hypothesis, was that the three incidents relied upon by the applicant as constituting the “stressors” within the meaning of the relevant SoP, were not experienced by the veteran within the five years before the clinical onset of the Major Depressive Disorder, as required by the SoP (see [175]-[178] of the decision).

4. By grounds 4.3-4.7 and 4.8, Mrs Rayson contended that the Tribunal erred in law by failing to identify all of the hypotheses available from the material before it to connect the veteran’s injury and his operational service.  In particular, she contended that the Tribunal should have, but failed to, identify two further hypotheses by which it could have found in favour of the veteran.

5. The Repatriation Commission accepts that there is an obligation found in s 120(3) of the Veterans’ Entitlements Act for the decision-maker to determine whether a reasonable hypothesis exists on the whole of the material before it. The Full Court in Benjamin at [47] recognised that in an inquisitorial review of the kind conducted in relation to a claim by a veteran, alternative hypotheses may need to be considered, if the evidence and material that is accepted, or not rejected, raises a case on a basis not articulated by an applicant.

6. At [48], Moore, Emmett and Allsop JJ continued:

   …Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration.  However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.

7. The Repatriation Commission contended that whilst there is an obligation to determine whether a reasonable hypothesis exists, that obligation is to be applied by reference to the way in which the case is presented by an applicant.  The Commission relied upon Repatriation Commission v Warren (2008) 167 FCR 511 at [78] and [88] (Lindgren, Bennett and Logan JJ) for the proposition that the Tribunal is not required to go behind a concession made in the presentation of a case. The Repatriation Commission contended by reference to the way in which Mrs Rayson’s case was conducted before the Tribunal, that her case was that the veteran suffered from PTSD and was not put on the basis that the veteran suffered a depressive disorder.

8. However, the Tribunal did not approach its task on the basis that the only injury in play was PTSD. The Tribunal made a finding that the veteran suffered from Major Depressive Disorder.  Having done that, it seems to me that, consistently with what the Full Court said in Benjamin at [47]-[48], it was incumbent upon the Tribunal to consider what reasonable hypotheses connecting that injury to the veteran’s service, were raised on the evidence and the material before the Tribunal, which the Tribunal had either accepted or not rejected.

9. Mrs Rayson contended that there were two possible hypotheses which the Tribunal failed to consider in relation to the veteran’s Major Depressive Disorder. The first suggested hypothesis is that one of the three incidents mentioned at [3] above “caused the late veteran’s Depressive Disorder within the five year time frame prescribed by the factor in clause 6(a)(ii) of the SoP”. By her submission, Mrs Rayson contended that the Tribunal should have relied upon the evidence Mrs Rayson gave that the veteran was depressed after he left the RAN in about 1957. If the Tribunal had done that, the five year time frame between incident and onset, required by the SoP, would have been satisfied.

10. However, it is clear beyond all doubt that the Tribunal considered the hypothesis that the veteran’s Major Depressive Disorder was attributable to one of the three incidents relied on.  In truth, what Mrs Rayson was really contending here was that in considering that hypothesis, the Tribunal arrived at the wrong conclusion.  Namely, that in relation to the five year limitation, the Tribunal should have concluded that the clinical onset of the Major Depressive Disorder occurred in 1957 (on the veteran leaving the RAN), and not in 2004, as the Tribunal had found, on the basis of the medical evidence before it.  This amounts to no more than a challenge to a finding of fact made by the Tribunal.  There is no error of law revealed and the challenge must be rejected. 

11. The other hypothesis which Mrs Rayson says the Tribunal should have considered, was that the veteran’s depressive disorder resulted from a prior psychiatric illness relating to his service which manifested within the five year limitation and which caused or contributed to the depressive disorder.  The psychiatric illness relied upon by the suggested hypothesis is that the veteran suffered from PTSD.  However, given that the Tribunal found that the veteran had not suffered from PTSD, this hypothesis did not arise on the evidence and material that the Tribunal accepted or did not reject.  Accordingly, this ground of challenge is also misconceived and must be rejected.

12. Mrs Rayson’s grounds of appeal 4.9-4.12 were the subject of written submissions and not further elaborated upon at the hearing.  Those grounds contended that the Tribunal failed to consider all of the relevant factors in the applicable SoP for depressive disorder.  In this respect, Mrs Rayson argued that the Tribunal erred by failing to have regard to clauses 6(a)(vi) and 6(a)(vii) of the SoP.  However, in each case, the argument made by Mrs Rayson that there was a failure to consider a relevant factor, which, if it had been considered could have led to a finding that the veteran suffered from a war-caused depressive disorder, was based on a presumption that such a finding was possible “had the Tribunal found that the veteran suffered from war-caused PTSD”.

13. These grounds suffer from a similar misconception to those with which I have just dealt.  The Tribunal made a finding that the veteran did not suffer from PTSD.  Having made that finding, there was no error of law involved in the Tribunal not considering a factor in the applicable SoP which may have led to a finding that the veteran’s circumstances would meet the requirements of the SoP for depressive disorder, but only if the Tribunal had found that the veteran suffered from PTSD.

    DISPOSITION

14. In light of my conclusions that each of the grounds of appeal pressed by Mrs Rayson must be rejected, the appeal should be dismissed.  It follows that Mrs Rayson should pay the costs of the Repatriation Commission.  I will make orders to that effect.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:       21 June 2012