Repatriation Commission v Binding
[1999] FCA 974
•23 JULY 1999
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Binding [1999] FCA 974
ADMINISTRATIVE LAW – Veterans’ affairs – appeal from decision of Administrative Appeals Tribunal (“the AAT”) – whether error of law committed by the AAT in its approach to the definition of “experiencing a stressor” in determining whether post traumatic stress disorder war caused.
Veterans’ Entitlements Act 1986 (Cth) ss 120(1)&(3), 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82, referred to
Re Queensland Electricity Commission; Ex p Electrical Trades Union of Australia (1987) 72 ALR 1, applied
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied
REPATRIATION COMMISSION v MAXWELL WILLIAM BINDING
VG 243 of 1998
MARSHALL J
MELBOURNE
23 JULY 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 243 OF 1998
BETWEEN:
REPATRIATION COMMISSION
ApplicantAND:
MAXWELL WILLIAM BINDING
RespondentJUDGE:
MARSHALL J
DATE OF ORDER:
23 JULY 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs of the appeal, including reserved costs, if any.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 243 OF 1998
BETWEEN:
REPATRIATION COMMISSION
ApplicantAND:
MAXWELL WILLIAM BINDING
Respondent
JUDGE:
MARSHALL J
DATE:
23 JULY 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal by the applicant, the Repatriation Commission (“the Commission”) from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the AAT”) made on 15 May 1998.
In its decision the AAT set aside a decision of the Commission made on 13 December 1995. The Commission’s decision had been affirmed by the Veterans’ Review Board on 8 April 1997. The Commission decided that the post traumatic stress disorder suffered by the respondent, Mr Binding, was not war caused.
Factual Background
Mr Binding served in the Royal Australian Navy (“the Navy”) commencing in November 1964 at the age of seventeen. After basic training he was assigned to HMAS Sydney. He had operational service for one month between 25 May 1965 and 25 June 1965 when he served on HMAS Sydney.
HMAS Sydney spent three days in Vung Tau Harbour in South Vietnam from 8 to 11 June 1965. Mr Binding served in the boiler room of HMAS Sydney, located seven levels below deck.
The AAT found that Mr Binding:
“… was very frightened of being trapped in the boiler room. He could not see what was going on around the Sydney which heightened his fear. He considered that if the Sydney was hit by enemy fire there would be no escape for him… When he felt an explosion he had no way of knowing whether the explosion was due to a scare charge or enemy fire. He recalled that on one occasion he took off from the boiler room up a flight of stairs on hearing an explosion which he thought was different to other sounds he had heard and he thought the ship was being shelled.”
The Legislative Context
In order to comprehend the reasoning process of the AAT in this matter regard must be had to the provisions of ss120(1), (3) and 120A and 196B of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). Those provisions provide as follows:
“120Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
196BFunctions of Authority
(1)This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service) rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Investigation
(4)If the Authority:
(a) receives a request under section 196E to carry out an investigation in respect of a particular kind of injury, disease or death; or
(b) of its own initiative, decides that a particular kind of injury, disease or death ought to be investigated for the purposes of this Act to find out whether a Statement of Principles may be determined in respect of it;
the Authority must carry out an investigation to obtain information that would enable the Authority to establish:
(c) how the injury may be suffered, the disease may be contracted or the death may occur; and
(d) the extent (if any) to which the injury, disease or death may be war-caused or defence-caused.
(5)If, after carrying out the investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3), in respect of that kind of injury, disease or death, the Authority must do so as soon as practicable.
(6)If, after carrying out the investigation, the Authority is of the view:
(a) that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; or
(b) that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so;
the Authority must make a declaration in writing:
(c) stating that it does not propose to make a Statement of Principles; and
(d) giving the reasons for its decision.
Subsequent investigation and review of determinations concerning Statement of Principles
(7)If the Authority:
(a) is asked under section 196E to review:
(i)the contents of a Statement of Principles; or
(ii)a decision of the Authority not to make a Statement of Principles in respect of a particular kind of injury, disease or death; or
(b) thinks that there are grounds for such a review; or
(c) is directed by the Review Council under subsection 196W(7) to carry out an investigation in respect of a particular kind of injury, disease or death;
the Authority must, subject to subsection 196C(4) in a case where paragraph (a) applies, carry out an investigation to find out if there is new information available about:
(d) how the injury may be suffered, the disease may be contracted or the death may occur; or
(e) the extent to which the disease, injury or death may be war-caused or defence-caused.
(8)If, after carrying out the investigation, the Authority is of the view that there is a new body of sound medical-scientific evidence available that, together with the sound medical-scientific evidence previously considered by the Authority, justifies the making of a Statement of Principles, or an amendment of the Statement of Principles already determined, in respect of that kind of injury, disease or death, the Authority must:
(a) determine a Statement of Principles in respect of that kind of injury, disease or death under subsection (2) or (3); or
(b) make a determination amending the Statement of Principles determined under subsection (2) or (3) in respect of that kind of injury, disease or death; or
(c) revoke the Statement of Principles determined under subsection (2) or (3), and determine a new Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death;
as the case requires.
(9)If, after carrying out the investigation, the Authority is of the view:
(a) that there is no new sound medical-scientific evidence about that kind of injury, disease or death; or
(b) that the new sound medical-scientific evidence available is not sufficient to justify the making of a Statement of Principles, or an amendment of the Statement of Principles already determined in respect of that kind of injury, disease or death;
the Authority must make a declaration in writing:
(c) stating that it does not propose to make a Statement of Principles, or amend the Statement of Principles already determined (as the case may be); and
(d) giving the reasons for its decision.
(10)If the Review Council has, by a decision notified in the Gazette, directed the Authority to amend a Statement of Principles in respect of a particular kind of injury, disease or death, the Authority must make a determination amending the Statement of Principles determined in respect of that kind of injury, disease or death in accordance with the directions of the Council.
(11)If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(2) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council:
(a) the factors that must as a minimum exist; and
(b) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has ben raised connecting an injury, disease or death of that kind with the circumstances of that service.
(12)If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(3) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council:
(a) the factors that must exist; and
(b) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
(13)A determination under subsection (10) amending a Statement of Principles, or a Statement of Principles under subsection (11) or (12) is to be taken to have had effect from the day on which the decision of the Review Council was notified in the Gazette. The determination or Statement of Principles must specify that day.
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury – it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person – it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
On 14 September 1994 the Repatriation Medical Authority (“the RMA”), determined a Statement of Principles (“SoP”) concerning post traumatic stress disorder. The SoP is annexed to these reasons for judgment and marked “A”.
The Reasoning of the AAT
The AAT accepted that the matter before it was governed by the principles established by the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 where the following was said (at 97, 98):
“At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
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 ss196B(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 s120(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.”
Paragraph 18 of the reasons for decision of the AAT was the crucial paragraph for the purposes of the appeal. The Court now reproduces that paragraph in full below. In doing so it is noted that the reference to “Instrument No 15 of 1994” is a reference to the SoP.
“18. Turning to Instrument No. 15 of 1994 and whether Mr Binding has raised a reasonable hypothesis connecting his post traumatic stress disorder, diagnosed by Dr Cooper and Dr Cole, with the circumstances of his service, the Tribunal considers only factor 1(a) is relevant. Mr Binding had not experienced post traumatic stress disorder prior to service. Mr Misso raised material pointing to Mr Binding’s post traumatic stress disorder as being war-caused. Mr Binding has described his experiences on the Sydney to the Tribunal and the effect they had on him over subsequent years. The Tribunal accepts Mr Misso’s contention that the days during which the Sydney was in Vietnam waters and anchored in the outer harbour may be seen as falling within the meaning of “an event” in the template. The raised facts point to Mr Binding experiencing rather than witnessing, or being confronted with threatened death or serious injury. No actual death or serious injury occurred. He was below deck and the Tribunal accepts that he perceived a threat to his physical integrity. However, the hypothesis raised by Mr Binding did not contain evidence pointing to his response to his service on the Sydney as having involved “intense fear, helplessness, or horror” (DSM-IV “experiencing a stressor” (b)).” His evidence points to him being fearful that he may be trapped in the boiler room, he felt on edge. He said to the Tribunal it was fear of the unknown. On one occasion he took off up a flight of stairs. His response on that occasion was not one of helplessness although Dr Cooper and Dr Cole have both diagnosed post traumatic stress disorder. Dr Cole was of the opinion that the diagnosis of post traumatic stress disorder “fits within the Statement of Principles” although he did not directly deal with Instrument No 15. Dr Cooper did not comment on the SoPs but was satisfied of the diagnosis. In light of their opinions, the Tribunal finds that the hypothesis raised by Mr Binding fits within the template and is therefore reasonable. (Emphasis supplied).
I have described par 18 of the AAT’s reasons as crucial. The sentence emphasised in bold above may be described as pivotal given that counsel for the Commission, Mr Hanks accepted that but for its presence in the reasons for decision of the AAT his client would not have filed its appeal.
In accordance with principle 3 in Deledio the AAT formed the opinion that the hypothesis that Mr Binding’s post traumatic stress disorder was war caused was a reasonable one. The hypothesis was found to be reasonable because it was consistent with the “template” to be found in the SoP.
In accordance with principle 4 in Deledio the AAT considered under s120(1) of the VE Act whether it was satisfied beyond reasonable doubt that Mr Binding’s post traumatic stress disorder was not war caused. The AAT found as follows on that issue:
“Having considered all the material before the Tribunal, although some doubts are raised in the Tribunal’s mind … the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for making a determination in Mr Binding’s favour.”
The Competing Submissions
Mr Hanks submitted that by including in its reasons for decision the sentence in par 18 of these reasons which is emphasised above, the AAT committed an error of law. The error of law was said to arise from the AAT’s approach to the definition of “experiencing a stressor” in clause 4 of the SoP.
Notwithstanding that the SoP is reproduced at Annexure A to these reasons it is helpful to repeat the definition of “experiencing a stressor”. Clause 4 of the SoP provides as follows:
“4. For the purposes of this Statement of Principles:
“DSM-IV” means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
“experiencing a stressor” means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s or other people’s physical integrity; and
(b) the person’s response to that event involved intense fear, helplessness or horror;
“post-traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span);
and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following;
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”
Clause 1(a) of the SoP refers to “experiencing a stressor” and also bears repeating. It provides that:
“(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder;”
Mr Hanks accepted that par (a) of the definition of “experiencing a stressor” was considered by the AAT to have occurred in Mr Binding’s case. He referred the Court in that context to that part of par 18 of the AAT’s reasons for decision where the following was said:
“… the Tribunal accepts Mr Misso’s [counsel for Mr Binding’s] contention that the days during which the Sydney was in Vietnam waters and anchored in the outer harbour may be seen as falling within the meaning of “an event” in the template. The raised facts point to Mr Binding experiencing rather than witnessing, or being confronted with threatened death or serious injury. No actual death or serious injury occurred. He was below deck and the Tribunal accepts that he perceived a threat to his physical integrity.”
Mr Hanks then submitted that the following sentence commencing with “However” constitutes a finding of fact that Mr Binding’s response to that event did not involve intense fear, helplessness or horror.
Having so found, so the argument ran, the AAT was not able to form the view in accordance with law that the definition of “experiencing a stressor” was satisfied in Mr Binding’s case. This was contended to be so having regard to the cumulative requirements provided by the definition.
Mr Hanks further submitted that having made such a finding of fact the AAT was unable to come to any contrary view by reference to medical opinions once the consequence of its findings was that the hypothesis did not fit the template provided by the SoP.
Mr Green, who appeared as counsel for Mr Binding on the appeal, took issue with Mr Hanks’ characterisation of the sentence commencing with “However” as containing a finding of fact. He submitted that properly understood and in context the AAT found that Mr Binding did experience a stressor as defined by the SoP. Mr Green submitted that the sentence relied upon by Mr Hanks amounted to no more than a discussion about Mr Binding’s evidence as distinct from a formal finding.
Mr Green submitted that although the relevant sentence was imperfectly expressed it did not, on its own, amount to a failure to accept that par (b) of the relevant definition was not satisfied. He also contended that the Court should be guided by substance rather than form and that it was not the role of the Court to over-zealously scrutinise the language of the AAT in an attempt to discover an inadequacy in expression by reference to the AAT’s reasons.
Consideration
In my opinion in saying that:
“However the hypothesis raised by Mr Binding did not contain evidence pointing to his response to his service on the Sydney as having involved “intense fear, helplessness, or horror (DSM-IV “experiencing a stressor” (b));"
the AAT did not intend to hold that the requirements par (b) of the definition of “experiencing a stressor” had not been met. If otherwise were so the ultimate finding of the AAT prior to considering s120(1) of the VE Act would have been nonsensical, that is, a finding:
“that the hypothesis raised by Mr Binding fits within the template and is therefore reasonable.”
I accept Mr Green’s submission that properly construed in context, the sentence commencing with “However” is merely a commentary on the oral evidence of Mr Binding before the AAT. In my view the AAT was attempting to say, albeit slightly inelegantly, that Mr Binding’s oral evidence did not show that he had experienced “intense fear, helplessness or terror” but that when one considered the evidence of Dr Cooper and Dr Cole it could be seen that Mr Binding did in fact experience such “intense fear, helplessness or terror” when serving on HMAS Sydney in Vietnamese waters.
I reject Mr Hanks submission that the AAT substituted an assessment of whether the hypothesis fitted the template of the SoP for an assessment of whether the medical evidence suggested that Mr Binding did in fact suffer from post traumatic stress disorder which was war caused. The Court understands the AAT’s reference to the evidence of Dr Cooper and Dr Cole to be a reference to the passages in their reports which support the view that Mr Binding experienced “intense fear, helplessness or horror”.
On the final page of his report dated 29 November 1996 Dr Cooper found that Mr Binding had experienced intense fear, helplessness or horror. The AAT also had the benefit of the unchallenged evidence of Ms Shaul, a psychologist, that Mr Binding “…was terrified that the ship was being blown up and he would be trapped 7 storeys under water”. Dr Cole’s report referred to Mr Binding as being “scared to go into the engine room”.
In my view Mr Hanks’ submissions effectively invite the Court to construe par 18 of the reasons of the AAT including the pivotal sentence thereof (the one commencing with “However”) as if it was a section of a statute. As the majority of the High Court said in Re Queensland Electricity Commission; Ex p Electrical Trades Union of Australia (1987) 72 ALR 1 (at 6):
“Of course, reasons for judgment are not to be read as if they were a statute requiring to be construed. They must be read in context.”
See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (per Brennan CJ, Toohey, McHugh and Gummow JJ) and per Kirby J where his Honour succinctly stated that (at 291):
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of a decision maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the interference of an error of law.”
In my opinion read as a whole, and considered fairly, par 18 of the reasons of the AAT support the view that the AAT determined that the requirements of par (b) of the meaning of “experiencing a stressor” had been met in the circumstances. The pivotal sentence can only be sensibly and fairly understood, as Mr Green contended, as a commentary on the oral evidence of Mr Binding when considered alone.
Order
The Court orders as follows:
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs of the appeal, including reserved costs, if any.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 23 July 1999
Counsel for the Applicant:
Mr P Hanks
Solicitor for the Applicant:
Australian Government Solicitor
Counsel for the Respondent:
Mr N Green
Solicitor for the Respondent:
Williams Winter & Higgs
Date of Hearing:
6 May 1999
Date of Judgment:
23 July 1999
ANNEXURE A
Statement of Principles
concerning
POST TRAUMATIC STRESS DISORDER
ICD CODE: 309.81
Veterans’ Entitlements Act 1986
subsection 196B(2)1.Being of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of that service, are:
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post traumatic stress disorder.
2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(c) must be related to any service rendered by a person.
3.The factors set out in paragraphs 1(b) and 1(c) apply only where:
(a) the person’s post traumatic stress disorder was contracted prior to a period, or part of a period of service to which the factor is related; and
(b)the relationship suggested between the post traumatic stress disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4. For the purposes of this Statement of Principles:
“DSM-IV” means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
“experiencing a stressor” means the following (derived from DSM-IV):
(a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s or other people’s physical integrity; and
(b) the person’s response to that event involved intense fear, helplessness or horror;
“post-traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following;
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”
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