Repatriation Commission v Clark, John Henry

[1996] FCA 297

IN THE FEDERAL COURT OF AUSTRALIA )

)

QUEENSLAND DISTRICT REGISTRY         )No QG 183 of 1994

)

GENERAL DIVISION  )

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr K. L. Beddoe (Senior Member), Brigadier I.R.W. Brumfield (Member) and Dr J.B. Morley (Member)

BETWEEN:  REPATRIATION COMMISSION

(Applicant)

AND:     JOHN HENRY CLARK

(Respondent)

JUDGE MAKING ORDER: Ryan J

DATE:                  26 April 1996

PLACE:                 Brisbane

MINUTES OF ORDER

THE COURT ORDERS:

1. That the application be dismissed with costs.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

QUEENSLAND DISTRICT REGISTRY         )No QG 183 of 1994

)

GENERAL DIVISION  )

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr K. L. Beddoe (Senior Member), Brigadier I.R.W. Brumfield (Member) and Dr J.B. Morley (Member)

BETWEEN:  REPATRIATION COMMISSION

(Applicant)

AND:     JOHN HENRY CLARK

(Respondent)

CORAM:    Ryan J

DATE:     26 April 1996

PLACE:    Brisbane

REASONS FOR JUDGMENT

RYAN J:   This is an application by way of an appeal from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal (the "Tribunal") given on 9 November 1994, whereby the Tribunal set aside a decision of the Veterans' Review Board and substituted a decision accepting chronic anxiety state as a war-caused disability pursuant to s. 9 of the Veterans' Entitlement Act 1986 ("the Act") and providing by paragraph (c) for the payment of disability pension at 80 per cent of the general rate on and from 5 November 1989 and at the intermediate rate on and from 1 July 1991.

By its notice of appeal to this Court, the applicant (the "Commission") seeks an order setting aside paragraph (c) of the Tribunal's decision and substituting a decision that the respondent's entitlement to disability pension be assessed at 80 per cent of the general rate of disability pension on and from 5 November 1989.  The question in dispute is whether the respondent was entitled to a disability pension at the intermediate rate pursuant to s. 23 of the Veterans' Entitlement Act 1986 ("the Act").

Background
The respondent, Mr Clark, was born 4 May 1925 and served in the Australian Army from 24 May 1943 to 30 October 1946.  He served overseas and in Australia.  For the purposes of the Act he is to be taken as having rendered operational service during that period.  Furthermore, it is common ground that the respondent suffers from chronic anxiety state which, in accordance with s. 9 of the Act is to be taken to be a war-caused disease.

The respondent had a varied occupational history after his war service including periods as a shop assistant, spare parts sales assistant, proprietor of a service station, salesman at a builders' hardware store and hardware sales assistant.  His last employer was Lanhams Timber & Hardware ("Lanhams") where he worked as a sales assistant from 1986 to June 1991.  The respondent was 66 years of age when he ceased employment.
On 2 February 1990 the respondent wrote to the Commissioner requesting to have the condition of chronic anxiety state recognised as a war caused disability.  He was asked to complete a formal pension claim which was subsequently lodged on 15 March 1990.  At that date the respondent was still employed, retiring as already noted, in June 1991.

In the section headed "Lifestyle Report" of the respondent's application to the Commonwealth Department of Veteran Affairs ("the Department"), dated 30 January 1990, the respondent gave his occupation as sales assistant and claimed that he had changed jobs in the last five years because of stress related conditions.  In answer to various questions the respondent replied that as a result of the stress-related conditions he was unable to perform tasks requiring undue exertion and accordingly had changed employers.  He had lost short periods from work due to bouts of nausea.  In his opinion his disability affected his future career "because I just haven't got the energy".

In a statement dated 21 February 1994 in relation to his appeal to the Tribunal, the respondent said:

1. I retired in June, 1991 at the age of 66 because I felt that I could not carry on any further.  I was becoming stressed at what I had to cope with and suffering extreme fatigue.  I found it most difficult to co-operate not only with people at work but also in my home life.  I was in the retail business and I found that I was losing patience with customers, and unreasonably so.

1. It has come to my attention that I referred to hypertension in my statement as one of the reasons that I retired.  I do not know what hypertension means technically but I used it to mean stress/anxiety.  So there are not two reasons why I have left work, I have merely used two terms to describe the same condition, ie. anxiety.

In the course of his oral evidence before the Tribunal the respondent gave this description of his last employer, Lanhams:

They had initiated opening a very small hardware section, and I was asked to come and manage it for them.  Now, I was on my own; it was only very small and basic.  Business grew, and I got - asked for assistance and received it; then a junior was put on and I turned 66 and they were in the process of opening a big store, and I asked to be relieved of my position because I felt - and deeply I knew - that I couldn't handle the involvement because I'm pretty particular, and possibly I was putting more demands on myself than was expected or necessary, but I was excused and relieved of my position which grieved me, but accepted that I could work on with them until such time as I retire in June 1991.

Under cross-examination about his reason for ceasing work, Mr Clark stated:

I was becoming anxious.  I was becoming somewhat agitated and not having the patience which I always prided myself to have; and furthermore I - I wanted to retire at 66... because I was - I was tired.  And I had to condition myself quite a number of days to cope.

When asked whether he would have taken another position without supervisory responsibility had one been offered by Lanhams, the respondent replied:

No, I was ready to bow out, because I was tired and I was 66 and I wanted a spell....I just was very tired of conditioning myself most days and trying to cope with anxiety and the stress, because I was very particular.

Before the Tribunal, Mr Clark claimed that he believed he could work "perhaps a couple of hours a day, three hours a day, some days" but would not want to be involved any more.  Further, since he had ceased employment with Lanhams the only income that he received had been the "pension and a couple of small investments my wife and I have in the form of term deposits which return us a small amount per month." The respondent agreed that he received less income than when he had been employed at Lanhams.

Medical evidence before the Tribunal
Counsel for the respondent directed attention to the effect of the medical evidence.  First was a report of the respondent's general practitioner, Dr A. Raine, dated 28 July 1994 which, so far as is relevant, stated:

With reference to retirement from the workforce of this man, the decision was made by himself entirely as he was 66 years of age and wished to retire on a reasonably healthy note.

The company he was employed by had built a large new Builders' Hardware Store which required an entire new lay-out and stocking etc.  As a consequence Mr. Clark relinquished his position as Section Head thus avoiding the added responsibility required by such a move.

His reason for making this request to his employer was to avoid added stress and he retired on 30th June, 1991.

As his G.P. for many years I have prescribed medication regularly to help him cope with his anxiety.  Existing records held by your office will reveal my treatment of this patient.

In his oral evidence before the Tribunal, Dr Raine said that the respondent was a very capable, over-conscientious person whom he thought, in the end, was not handling his work too well.  In a report dated 16 March, 1994, Dr Raine expressed the opinion that the respondent's disabilities would allow him to work for eight hours a week but not twenty.

The Department's medical officer in a report dated 4 March 1990 in relation to the respondent's employment wrote:

Works as sales assistant full time - restricted by A/D due to lack of energy.  Restricted by anxiety (non-determined) - stress at work.  Takes longer to do most jobs due to fatigue from A/D.

Before the Tribunal the following exchange occurred between Mr Hargraves, the representative of the Department and Dr Brian Kimbell, a psychiatrist:

So do you feel that he would be able to do a less stressful job if one were found for him? - Only if the hours were abbreviated.

So, even in a less stressful job, he could not do a - more than 20 hours; is that what you are saying? - That's right.

Nature of the Appeal
The Commission has appealed to this Court under s. 44(1) of the Administrative Appeals Tribunal Act 1975 (the "AAT Act"), which enables a party to a proceeding before the Tribunal to appeal on a question of law from any decision of the Tribunal in that proceeding. Such appeals are within the Court's original jurisdiction which is restricted to resolving questions of law, and does not extend to rehearing the whole
matter:  Brown v Repatriation Commission (1985) 7 FCR 302 at 304-305.

The Act embodies a complex scheme whereby compensation is payable in certain circumstances to those who have rendered eligible war service (as defined).  It is not necessary for the purposes of the present application to describe all the aspects of that scheme.  In Chambers v Repatriation Commission (1995) 55 FCR 9, Moore and Sackville JJ at pp 12-14 have examined in some detail those elements of the statutory framework which bear on the present case.

The statutory context
Eligibility for the intermediate rate of pension is defined in s. 23(1) of the Act.  The criteria relevant to Mr Clark are those set out in paragraphs (b) and (c) of that sub-section which provide:

Intermediate rate of pension

23.(1)  This section applies to a veteran if: ...

(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity. ...

The concept of incapacity for the purposes of this intermediate rate is different from that of incapacity to which the general rate applies.  A Full Court of this Court in Althorpe v Repatriation Commission (1987) 77 ALR 42 described that difference as follows, at 49:

In brief, the criteria for the intermediate rate and for the special rate look to incapacity for work, that is to say incapacity to earn, whereas incapacity for the purposes of the general rate is not concerned primarily with incapacity for work but looks to incapacity which takes into account the effect of the relevant disability upon the whole of the veteran's life, not only his working life, but also his social and family life.

In seeking to set aside the finding that Mr Clark was entitled to the intermediate rate, the Commission has attacked the Tribunal's decision on the ground that the Tribunal's findings were not "reasonably open" to it on the evidence - in other words, that the decision was not supported by the factual material before the Tribunal.

Tribunal's Reasons for Decision
The Tribunal accepted Mr Clark as a witness of truth and accepted his evidence in its entirety.  It stated as follows its reasons for the finding which is attacked in the present application:

10.In respect of section 23 of the Act, we find on the evidence before us that the applicant does have a limited capacity to work but that limited capacity is not more than 20 hours a week.  Section 23 is therefore an appropriate provision in the circumstances of the case.

11.In relation to paragraph 23(1)(a) the 70% test is satisfied by our finding that the applicant is entitled to 80% of the general rate from 5 November 1989.

12.In relation to paragraph 23(1)(b) we are satisfied that the criteria for this paragraph have been met on the material before the Tribunal.

13.In relation to paragraph 23(1)(c), the test to be applied was enunciated by the Federal Court of Australia in Starcevich v Repatriation Commission (1987) 76 ALR 449 and in particular at page 443. There Fox J sets out the test in the context of paragraph 24(1)(c) of the Act. In this Tribunal's view the criteria set out there by his Honour applies also in relation to paragraph 23(1)(c) of the Act. Applying that test, the three tests set out there by his Honour are as follows:

"It is clear that the words `by reason thereof' link the limbs together and that para (c), read with sub-s (2), imposes a test which so far as here relevant requires three conditions to be satisfied:

(1)The veteran being prevented from continuing to undertake remunerative work that he was undertaking.

(2)Condition 1 (above) being by reason alone of the incapacity, from war-caused injury or war-caused disease to which s24(1)(b) relates.

(3)By reason of condition (1) above, the veteran suffering a loss of salary or wages or earnings on his or her own account."

14.The Tribunal is satisfied that each of those tests has been satisfied in this case and therefore paragraph 23(1)(c) applies on the material before the Tribunal.  We have therefore decided that the applicant is entitled to the payment of disability pension at the Intermediate Rate on and from 1 July 1991.

Factors relevant to determining the veteran's capacity for work - s.28

Section 28 of the Act gives some guidance as to the meaning of s. 23(1)(b).  It sets out three factors which the Commission (and, in turn, the Tribunal at the review stage) must consider in determining whether a veteran is incapable of undertaking remunerative work for the purposes of s.23(1)(b).  These are:

(a)the vocational, trade and professional skills, qualifications and experience of the veteran;

(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

Section 28 provides expressly that these are the only matters to which regard may be had in deciding whether s. 23(1)(b) is satisfied.

The first of these matters involves an analysis of the facts bearing on the skills and past experience of the veteran in question.  According to Moore and Sackville JJ in Chambers (supra), at p 20, the purpose of the inquiry in s. 28(a) is:

to direct attention to the range of employment opportunities available to the individual but for his or her disability:  Re Thomson [(1987) 6 AAR 44] at 431-3. Accordingly, the skills, qualifications and experience of the veteran are to be assessed independently of the war-caused incapacity: Defence Force Retirement and Death Benefits v House 22 FCR 138 at 142.

At the stage of considering those skills and that experience, the inquiry should disregard the effect on the veteran's employment to date of the war-caused injuries.  The impact of the injuries is to be addressed instead under s. 28(c), which requires the decision-maker to consider how those injuries have reduced the veteran's capacity for remunerative work.

Miss Henderson of Counsel for the Commission directed attention to paragraph 12 (above) of the Tribunal's reasons for decision and submitted that it was obvious that the Tribunal had not indicated anything in the course of its reasons, and furthermore there was no evidence before the Tribunal, to support a finding that s. 23(1)(b) had been satisfied.  It was submitted that the application of s. 28(a) and (b) required resort first to the evidence that the respondent was a shop assistant.  The effect of his war-caused injury on his capacity as a shop assistant evaluated in terms of s. 28(c) was argued to be none at all.  Rather, the evidence before the Tribunal showed that it was the stresses of added responsibility attaching to his particular position as a shop assistant that prompted the respondent to cease employment.  His anxiety state concededly precluded him from discharging the added responsibilities. However, there was no evidence to permit a finding that his anxiety state had made him unable to undertake any work as a shop assistant.

Miss Henderson focussed on paragraph 12 of the Tribunal's decision in its application of s. 28 of the Act.  In Chambers (supra), at 26; 36 ALD 205 at 223, Moore and Sackville JJ said of the application of that section:

In our view, while it will often be desirable for the tribunal to consider separately the three subparagraphs of s 28, and to record findings in relation to "each of them" the tribunal is not compelled as a matter of law to take this course.  Section 28 requires the Commission (or tribunal) "to have regard to [three specified] matters only" in determining whether an incapacitated veteran is incapable of undertaking remunerative work.  These words mean that the tribunal must give weight to each of the matters as a fundamental element in making a determination on that issue: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; 25 ALR 497, per Mason J. The tribunal is also required to exclude all other considerations in making its determination. Provided the tribunal follows this course it does not depart from the requirement of s.28. Whether it has followed the requisite course will depend upon a reading of the tribunal's reasons as a whole. Such a reading should not be concerned with looseness in language.  As was said by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; 115 ALR 1 at 9 (Fed C, Full Court): The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

Mr O'Gorman of Counsel for the respondent identified what he claimed to be the relevant evidence before the Tribunal to support its findings.  As already noted the Tribunal accepted the respondent as a witness of truth and accepted his evidence in its entirety.  The respondent's evidence was that his capacity to work had been reduced to "perhaps a couple of hours per day".  Medical evidence also supported a capacity to work reduced to less than 20 hours a week.  As might be imagined, the respondent's evidence also demonstrated that as a result he has suffered a reduction in income.

Section 23(1)(c)
A veteran must satisfy, in addition to those imposed by s. 23(1)(b), the requirements of s. 23(1)(c).

Section 23(3) expands upon the meaning of that paragraph by providing:

(3)For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary of that incapacity:

(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;

Counsel for the Commission submitted that the Tribunal had erred in law in failing to have regard to the evidence on the question raised by s. 23(1)(c).  Specifically, it was submitted that the Tribunal had failed to consider whether something other than his war-caused injury had prompted Mr Clark to cease the remunerative work which he had previously undertaken.  It was submitted that the inference to be drawn from the evidence was that the respondent was not a man who was motivated to work indefinitely but rather that the loss of his wife and daughter had prompted him to revise his plans to retire at 60 because the house was so lonely.

On behalf of the respondent, it was submitted that it was never seriously suggested to the respondent, let alone put to the respondent by the Department's advocate, that his diminished ability to engage in remunerative work had been the result of anything other than his accepted disabilities.  It was further argued that the inference was open on the testimony of the respondent before the Tribunal that his accepted disabilities alone had resulted in his ceasing remunerative work.  In this regard Counsel referred to the following exchange in cross-examination of the respondent:

So, you were having some troubles nevertheless with coping and that is one of the reasons that you retired? - Yes...I was having troubles, yes.

Counsel submitted that in giving that answer the respondent was not acquiescing in the suggestion that there had been more than one reason for his retirement but was admitting only that he was having troubles.  The cross-examination then continued:

If you had not had those troubles, when would you have retired? - The reason why I kept working, Mr Hargraves, was the fact of - the age of 59, I lost my first wife.  She gave us 12 hours notice.  And 10 months later my eldest daughter of 34 left us.  And I elected to keep working because that house was terribly empty.

Counsel submitted that an inference could be drawn from that evidence taken together with the earlier evidence that the respondent's first wife had wanted him to retire at 60 that the respondent had in June 1991 no reason to retire except for his deterioration in health.

The application of s. 23(1)(c) is strictly confined to veterans who are prevented from working by their war-caused incapacity "alone".  It thus has no application to those veterans whose incapacity to work is caused or contributed to by any other factor.  As the Full Court indicated in Repatriation Commission v Strickland (1990) 12 AAR 343, a veteran who is also prevented from working by other circumstances, such as age, cannot satisfy the requirement.

In my view, there was evidence before the Tribunal which entitled it to find that it was Mr Clark's war-caused incapacity alone and not age or domestic circumstances which prompted him to give up remunerative employment of the kind which he had previously undertaken.  A finding to that effect is implicit in the conclusion in paragraph 14 of the Tribunal's reasons that Mr Clark had satisfied the requirements of s. 23(1)(c).

As discussed above in relation to s. 23(1)(b), where an evidentiary basis for its finding of fact is discernible, the Tribunal cannot be said to have erred in law in making that finding so as to require correction by this Court.

Conclusion
For these reasons, I have not been persuaded that the Tribunal erred in law in deciding that Mr Clark was entitled to be paid a pension at the intermediate rate under s. 23 of the Act from 1 July 1991.  The application must be dismissed with costs.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for Applicant     :  Miss R. Henderson

Solicitors for Applicant  :  Australian Government Solicitor

Counsel for Respondent    :  Mr D. O'Gorman

Solicitors for Respondent :  Gilshenan & Luton

Date of Hearing          :  14 July 1995

Date of Judgment         :  26 April 1996