Repatriation Commission v Mayfield
[2008] FMCA 1103
•11 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REPATRIATION COMMISSION v MAYFIELD | [2008] FMCA 1103 |
| ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – whether Tribunal erred by finding hypotheses open – “event” for the purposes of Statement of Principles – alcohol abuse. ADMINISTRATIVE LAW – Veteran's entitlements – pensions and benefits – rate of pension – no question of law – appeal dismissed. |
| Administrative Appeals Tribunal Act 1975, s.44 Veterans’ Entitlements Act 1986, ss.23 |
| Repatriation Commission v Deledio (1998) 83 FCR 82 Woodward v Repatriation Commission (2003) 200 ALR 332 Repatriation Commission v Stoddart (2003) 77 ALD 67 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | REPATRIATION COMMISSION |
| Respondent: | KEVIN MAYFIELD |
| File Number: | BRG 582 of 2006 |
| Judgment of: | Jarrett FM |
| Hearing date: | 6 November 2006 |
| Date of Last Submission: | 6 November 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 11 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Derrington SC |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr Clutterbuck |
| Solicitors for the Respondent: | Mylne & Associates |
ORDERS
The appeal is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 582 of 2006
| REPATRIATION COMMISSION |
Applicant
And
| KEVIN MAYFIELD |
Respondent
REASONS FOR JUDGMENT
Kevin Mayfield served in the RAAF between May, 1965 and May, 1985. In that time he saw two periods of operational service - the first at Ubon, Thailand between March, 1966 and October, 1966 and the second at Ismalia between January, 1977 and July, 1977.
This appeal, from a decision of the Administrative Appeals Tribunal about Mr Mayfield’s entitlement to a war service pension and the rate of pension he already receives, concerns his service at Ubon only. It does not concern his service at Ismalia.
Mr Mayfield suffers alcohol dependence. He has a number of other medical conditions, in respect of which he receives a service pension, paid at what is termed the “general rate”. He applied to the Commission to have his alcohol dependence recognised as war caused and, for separate reasons, for his general rate of pension to be increased to the special rate of pension.
In its decision given on 14 June, 2006 the Tribunal set aside a decision of a veterans’ review board, which had confirmed a decision of the Commission that:
a)Mr Mayfield’s alcohol dependence was not war caused as he claimed; and
b)Mr Mayfield was not entitled to be paid his pension at a special or intermediate rate.
By its decision, the Tribunal substituted its own decision that Mr Mayfield’s alcohol dependence was war caused and that he was entitled to an intermediate rate of pension (which is higher than the general rate). From both of those determinations, the Commission now appeals.
The Commission submits that the following questions of law arise on the appeal:
1.1 the proper construction and operation of sections 23(1 )(c), 23(3),120(1), 120(3) and 120A(3) of the VE Act;
1.2 the proper construction and operation of clauses 2(b), 4, 5(b), 5(c), 5(d) and 8 of the Statement of Principles for alcohol dependence or alcohol abuse, No 76 of 1998 (the SOP);
1.3 whether the Tribunal erred in its construction of the term ‘experiencing a severe stressor” as defined in clause 8 of the SoP;
1.4 the proper construction and operation of clause 2 of SoP No 3 of 1999 concerning post traumatic stress disorder;
1.5 whether the Tribunal failed to meet the requirements of s 120(3) and s 20A(3) of the VE Act by failing to make any finding, on its consideration of the whole of the material before the Tribunal, that the material pointed to the clinical onset of the features and symptoms of alcohol dependence, as prescribed by the diagnostic criteria for that disease, during Mr Mayfield’s operational service at Ubon;
1.6 whether the Tribunal failed to meet the requirements of s 120(3) and s 120A(3) of the VE Act by failing to make any finding, on its consideration of the whole of the material before the Tribunal, that the material pointed to the clinical onset of the features and symptoms of Mr Mayfield’s alcohol dependence, as prescribed by the diagnostic criteria for that disease, within the time prescribed by paragraph 5(b) of the SoP;
1.7 whether the Tribunal failed to meet the requirements of s120(3) and s 120A(3) of the VE Act by failing to make any finding, on its consideration of the whole of the material before the Tribunal, that the material pointed to a clinical worsening of the features and symptoms of Mr Mayfield’s alcohol dependence, as prescribed by the diagnostic criteria for that disease;
1.8 whether the Tribunal failed to meet the requirements of 6120(3) and s 120A(3) of the VE Act by failing to make any finding, on its consideration of the whole of the material before the Tribunal, that the material pointed to the clinical worsening of the features and symptoms of Mr Mayfield’s alcohol dependence, as prescribed by the diagnostic criteria for that disease, within the time prescribed by paragraph 5(d) of the SoP;
1.9 whether the Tribunal failed to meet the requirements of s 120(3) and s 120A(3) of the VE Act by failing to make any finding, on its consideration of the whole of the material before the Tribunal, that Mr Mayfield was suffering from post traumatic stress disorder, by reference to the features and symptoms of that disease as prescribed by SoP No 3 of 1999 and by DSM-IV, at the time of clinical worsening of Mr Mayfield’s alcohol dependence;
1.10 whether, in consequence of the failures referred to in questions 1.5,1.6, 1.7, 1.8 and 19, the Tribunal failed to determine, as required by s 120A(3) of the VE Act, whether the whole of the material before the Tribunal raised a hypothesis connecting Mr Mayfield’s alcohol dependence with his operational service, being a hypothesis that was upheld by the SoP;
1.11 whether the material before the Tribunal was capable of supporting a finding that the material before the Tribunal pointed to Mr Mayfield’s alcohol dependence having clinically worsened in the two year period immediately following his experiencing a severe stressor;
1.12 whether the material before the Tribunal was capable of supporting a finding that the material before the Tribunal pointed to Mr Mayfield’s alcohol dependence having clinically worsened.
1.13 whether, in its consideration of the rate of pension payable to Mr Mayfield, the Tribunal was required by s 23(3)(a) of the VE Act, and failed, to take into account:
(a) the reasons why Mr Mayfield ceased to engage in remunerative work;
(b) the reasons why Mr Mayfield was prevented from engaging in remunerative work;
(c) the reasons why Mr Mayfield had been engaged in remunerative work on a part-time or intermittent basis for more than 20 years.
1.14 whether, in its consideration of the rate of pension payable to Mr Mayfield, the Tribunal was required by s 23(3)(b) of the VE Act, and failed, to ask itself if Mr Mayfield’s war-caused incapacity was the substantial cause of his inability to obtain remunerative work.
As to the first determination concerning whether Mr Mayfield’s alcohol dependence was war-caused, the Tribunal was satisfied to the relevant standard that Mr Mayfield suffered from alcohol dependence. That finding is not challenged in this appeal.
The Tribunal identified that it needed to apply the four step process set out in Repatriation Commission v Deledio (1998) 83 FCR 82 to determine the first aspect of Mr Mayfield’s claim – that his alcohol dependence was war caused.
The Tribunal identified that on the material presented by Mr Mayfield, there were two hypotheses raised connecting his condition with the circumstances of his service[1]. They were:
a)The Ubon camp was located beside a fuel dump and Mr Mayfield lived in fear of an explosion. That fear, coupled with constant aircraft noise from the nearby airstrip, made sleeping difficult and he resorted to sleeping some distance from the fuel dump and consuming alcohol to ensure sleep.
b)When he was a casual observer at the scene of an aircraft that crashed on takeoff he came across what he believed to be body parts. He found the experience horrifying and the experience led him to change his alcohol consumption patterns and/or increase his alcohol consumption.
The Commission does not suggest that the hypotheses identified by the Tribunal were not open on the material presented by Mr Mayfield. Clearly they were.
The Tribunal identified that a Statement of Principles was in force that was relevant to Mr Mayfield’s claim for alcohol dependence[2]. The Commission does not suggest that the tribunal identified or applied the wrong Statement of Principles.
The Tribunal considered that the first hypothesis identified above “fit the template” of the Statement of Principles. It considered that the hypothesis contained one of the factors, which by the Statement of Principles were required to exist, and that that factor was related to Mr Mayfield’s service. Therefore, the Tribunal concluded that the first hypothesis was reasonable.
It is at this point that the Tribunal is said to have strayed into error. To understand the Commission’s argument, it is necessary to turn to the Statement of Principles and delve a little deeper into the Tribunal’s reasoning.
Relevantly, the Statement of Principles provides:
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
The Tribunal accepted that on the evidence four factors set out in the Statement of Principles might arise for consideration based upon the evidence in Mr Mayfield’s claim. They were that he:
a)was suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
b)experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
c)suffered from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
d)experienced a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse.
Two of those four factors rely upon the claimant experiencing a severe stressor. The phrase experiencing a severe stressor is defined in the Statement of Principles as follows:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
The Tribunal recognised that Mr Mayfield’s case relied upon the Tribunal accepting that he was exposed to two particular stressors during his service in Ubon (or either of them). The first was the stress created by his living and working arrangements. The second arises out of an incident when a USAF jet crashed on take-off killing those on board.
The Commission’s grounds of appeal relate to the first stressor identified by Mr Mayfield. The Tribunal recorded that it was Mr Mayfield’s case that he had been terrified by the location of an above-ground fuel dump, about 15 metres in height, located directly beside the Australian base. It was present next to the Australian Base for the whole of his service in Ubon. He said that he suffered extreme fear caused by the presence of the fuel dump and the potential for an explosion. He could see the fuel dump from his window and was so troubled by it that he would take himself down to an open air cinema to sleep, armed with a bottle of spirits. There was constant noise from aircraft taking off from the airbase, every 10 minutes, around the clock. Whilst that noise was a bother, the real reason he went to sleep in the cinema was his fear of an explosion at the fuel dump.
The Tribunal determined that Mr Mayfield experienced a severe stressor within the two years immediately before the clinical onset of his alcohol dependence or alcohol abuse. The Tribunal came to that conclusion because it concluded that:
a)living beside a fuel dump at an airbase in a situation where there was a potential for explosion satisfied the objective requirements of the definition of “experiencing a severe stressor”; and
b)subjectively, Mr Mayfield was “terrified” and his reaction excessive to the perceived threat of the fuel dump.
The first question of law is said to arise because, it is argued, that the Tribunal erred in its construction of the Statement of Principles by treating the existence of the fuel dump and its proximity to the Australian Base at Ubon, and therefore the entire period of Mr Mayfield’s operational service at Ubon, as “an event” for the purposes of the definition of the term experiencing a severe stressor. It was submitted that to approach the matter in that way would mean that any claimant’s service, in and of itself, would be an “event” for the purposes of the relevant Statement of Principles, if the claimant perceived that service as stressful.
The word “event” it was submitted connotes an incident or single happening and it is not apt to describe a continuous state of affairs such as the living and working arrangements encountered by Mr Mayfield at Ubon. Support for the submission is drawn from:
a)the examples of events given in clause 8 of the Statement of Principles;
b)the requirement for extremity of feeling or response to the severe stressor;
c)the respective requirements that a factor exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence with the circumstances of the person’s relevant service; and
d)the requirement that a severe stressor be experienced within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
In my view, however, the Tribunal has not made an error of law as submitted by the Commission because it was not Mr Mayfield’s service at the Australian Base in Ubon that the Tribunal considered was the stressor.
The Tribunal identified that “Any analysis of experiencing a sever stressor … involves a consideration of both objective and subjective elements…”. It was clearly right to do so: Woodward v Repatriation Commission (2003) 200 ALR 332. The Tribunal identified that:
…one component of experiencing a severe stressor relates to an event that involved threat of death or serious injury; or threat to the veteran’s or another person's physical integrity. The material before us in regard to Mr Mayfield's fears about the potential for explosion at the fuel dump points to his experiencing an event which was, judged objectively from the point of view of a 20 year old and with his knowledge, was capable of conveying a risk of serious injury to himself or to others. As he described it, others were unsettled by the proximity of the fuel dump, but his reaction was excessive. He was terrified. We considered that his evidence was consistent with the template of experiencing a severe stressor in the statement of principles, in that there was the appearance of a real threat to his personal safety, which might evoke feelings of substantial distress in a person so exposed, and did so in Mr Mayfield's case.
The Tribunal did not treat Mr Mayfield's service at Ubon, of itself, as the event for the purposes of being satisfied that there was a severe stressor. It was his service in the context of the existence of the fuel dump, and the fear that it generated in Mr Mayfield, which was the event for the purposes of the Statement of Principles. The fact that the perceived threat from the fuel dump existed for the whole of Mr Mayfield service at Ubon is, in my view, irrelevant. If it was relevant, then on the Commission's argument, there might be an “event” for the purposes of the Statement of Principles if the fuel dump was only temporarily located next to the Australian Base – say for a day or perhaps a little longer; but no “event” if its location was permanent.
Once it is recognised that the existence of the fuel dump represented a threat of death or serious injury, both objectively and subjectively, the period over which the threat existed and the correlation of it with Mr Mayfield’s service at Ubon is irrelevant. The fact that service at Ubon, required Mr Mayfield to work and live in close proximity to the fuel dump as part of his service, or ordinary and day-to-day activities, does not provide an answer to his claim. To use the words of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart (2003) 77 ALD 67 at [38]:
The vice in this contention is that it fails to take account of the possibility that events that are objectively “neutral in character” may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time.
In my view this ground fails.
As well as deciding that Mr Mayfield had experienced a severe stressor, the Tribunal was satisfied that the clinical onset of his alcohol dependence was during his service at Ubon. That finding was important because to establish one of the factors identified by the Tribunal as arising on Mr Mayfield’s material, clinical onset of the claimed condition must have occurred within two years of his experiencing the severe stressor. There was evidence, given by Dr Peter Mulholland, psychiatrist, as to the onset of alcohol abuse or alcohol dependence. He concluded that it was whilst Mr Mayfield was at the airbase in Thailand[3]. His evidence was in the following terms:
Doctor, were you able to form a view on the onset of the alcohol abuse or alcohol dependence?--- Well, the history was that this began during his time in the air base in Thailand, and it’s continued ever since. That was the history that I was given, and there didn’t seem to be any other time of onset.
(my emphasis)
Dr Mulholland’s answer clearly referred to the subject of the question - the onset of the alcohol abuse or alcohol dependence. His evidence was that that it began in Thailand.
The Commission argues that the Tribunal did not consider whether the whole of the material before it pointed to Mr Mayfield manifesting features and symptoms of alcohol dependence prescribed in clause 2(b) of the Statement of Principles during his service in Ubon. It is true that the Tribunal did not in its reasons step through the process of considering each of the matters set out in clause 2(b) of the Statement of Principles. Nor did it consider in terms whether any three of the matters referred to in that clause manifest themselves in the two year period after Mr Mayfield experienced his severe stressor. But it did not need to do so. The Tribunal had before it evidence from Dr Mulholland (which was consistent with the other medical evidence before it) that the Axis I diagnosis of Mr Mayfield’s condition in accordance with DSM-IV-TR Multiaxial evaluation was alcohol abuse/dependence. Implicit in the Doctor’s opinion is that the diagnostic criteria for those conditions were met. His evidence was that onset was in Thailand. The Tribunal was entitled to accept that evidence.
In my view these challenges to the Tribunal’s decision fail.
The Commission challenges the Tribunal’s conclusion that the second hypothesis was raised by the material. Put simply, the Commission argues that there was no evidence that could point to the clinical worsening of the features or symptoms of alcohol dependence. I accept this submission. The Tribunal did not ask itself the right question. Its enquiry focussed on the quantity of alcohol consumed by Mr Mayfield, not the features or symptoms of alcohol dependence. The Tribunal recognised the difficulties with this aspect of Mr Mayfield’s case:
37. For this reason the hypotheses that include clinical worsening of alcohol dependence as an element are therefore, reasonable hypotheses. There was however, scant evidence about clinical worsening. There was no medical evidence directly on point and we were mindful also that Mr Mayfield’s evidence was that he reduced his consumption of alcohol when he returned to Australia.
In my view, there was no evidence that pointed to a clinical worsening of Mr Mayfield’s alcohol dependence or alcohol abuse at any time. Thus, the Tribunal’s reliance on those factors in the Statement of Principles which themselves relied upon a clinical worsening of his alcohol dependence or alcohol abuse was misplaced.
Thus, whilst the Commission demonstrates that the Tribunal was in error in determining that the hypotheses raised by the material before it did not fit the template of the Statement of Principles for clinical worsening of alcohol dependence or alcohol abuse, it was not in error in determining that the hypothesis raised by the material before it concerning clinical onset did fit the template of the Statement of Principles.
The appeal against the Tribunal’s determination that Mr Mayfield’s alcohol dependence was war-caused must therefore fail.
The Commission’s challenge to the second of the Tribunal’s determinations is set out as questions of law 1.13 and 1.14 of the Notice of Appeal. Whilst couched in terms suggestive of questions of law, in truth, the Commission seeks to challenge the findings of fact made by the Tribunal. That is impermissible on an appeal such as this.
Clearly, s.23(3)(a)(i) of the VE Act required the Tribunal to take into account the reasons why Mr Mayfield ceased to engage in remunerative work; the reasons why Mr Mayfield was prevented from engaging in remunerative work and the reasons why Mr Mayfield had been engaged in remunerative work on a part-time or intermittent basis for more than 20 years.
The Tribunal characterised the remunerative work that Mr Mayfield was undertaking as “security work, light clerical work, as well as some light skilled work as a museum tour guide”. The Tribunal found that Mr Mayfield was prevented from continuing in remunerative employment particularly as a result of his psychiatric disabilities, together with other war caused physical disabilities. The Tribunal took into account the medical evidence presented to it. Whilst it did not expressly refer to the following particular evidence referred to by the Commission:
a)his small security business in Darwin (which employed about five, six men) which commenced after leaving the RAAF failed in a year or two;
b)he then did absolutely nothing for quite some time;
c)his work as a tour guide (during the tourist season at an aviation museum in Darwin from 1987-1989 for three to four hours every second day, and occasionally in the off-season in the souvenir shop) ceased when he moved to Queensland because his parents were not well;
d)his part-time job (one day a week or two days a week for an unnamed security firm after moving to the Gold Coast hinterland in 1993) did not last very long because the company folder up;
e)his work for IPEC in about 1996 (from 4.00am until about 6.00am counting boxes unloaded by general hands from delivery truck “against a sheet”) ceased when IPEC was taken over by another company which had its own security personnel;
f)he did not work again until doing some casual part-time process serving for Rumpoles Legal Service for an hour or two on one or more days a week (which was not encompassed in the Tribunal’s finding as to the kind of remunerative work in which he had been engaged) in 1999-2001.
The difficulty for the Commission with this argument is that in each of the instances set out above (save the move to Queensland), Mr Mayfield gave evidence that connected his loss of employment, either completely, or in part, to his war related disabilities – either his drinking, or his back problem. That was consistent with the medical evidence before the Tribunal.
This ground seeks to challenge the findings of fact by the Tribunal in an impermissible way.
The commission further submits that the Tribunal failed to ask itself, as s.23(3)(a)(ii) of the VE Act required, whether there was some other reason why Mr Mayfield was prevented from engaging in remunerative work. It argued that the Tribunal did not consider whether Mr Mayfield’s age, limited skills and limited civilian employment prevented him from engaging in remunerative work (of the kind which it had found he had been undertaking). The Tribunal, however, did consider that matter:
62. In regard to the third question, the medical evidence confirms that war- caused disease accounts for Mr Mayfield’s limitations. His case has been extensively investigated by the respondent and we were not presented with any medical evidence of other conditions, themselves not accepted as war-caused, which were affecting his ability to work. Nor were any other factors identified as playing a part in preventing him from continuing in remunerative work. The evidence reveals that excessive alcohol consumption is the real hindering factor in Mr Mayfield’s continuing on remunerative work.
The commission further submits that the Tribunal failed to ask itself, as s.23(3)(a)(iii) of the VE Act required, why Mr Mayfield had been engaged in remunerative work on a part-time basis or intermittently. In fact the tribunal considered this matter, but in a short-hand way. The Tribunal considered whether Mr Mayfield’s DFRDB pension was a reason why he did not need to work or why he worked part-time or intermittently. It accepted his evidence about that. It did not expressly state in its reasons that it had considered whether Mr Mayfield had been engaged in work on a part-time or intermittent basis due to limited work skills, lack of full-time or permanent work in the area where he lived, market conditions or personal choice unrelated to his DFRDB pension. This ground again seeks to challenge the findings of fact made by the Tribunal. No question of law arises.
The Tribunal was required to apply s.23(3)(b) of the VE Act. In my view it did so and its reasoning is found in paragraph 65 of its reasons for decision. Its reasons are in summary form, but having regard to s.43(2B) of the Administrative Appeals Tribunal Act 1975 the reasons set out what is required:
65. We accept that Mr Mayfield has made genuine attempts to secure work, to no avail. We were satisfied that Mr Mayfield is suffering a loss of salary or wages and that there are no other reasons apart from war-caused incapacity that serve to explain this.
The Tribunal’s reasons for decision should not be scrutinised over-zealously with an eye to determining whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259. Paragraph 65 of the Tribunal’s reasons set out its findings. Its findings were supported by the evidence. No question of law arises on this ground.
The appeal must be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Acting Associate: E Crutchfield
Date: 11 August 2008
[1] at 31 of the Tribunal’s reasons for decision.
[2] at 8 of the Tribunal’s reasons for decision Instrument No. 76 of 1998: Statement of Principles concerning Alcohol dependence or Alcohol Abuse
[3] transcript p.48
0
5
2