Repatriation Commission v Norton

[2008] FCA 1132

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Norton [2008] FCA 1132

DEFENCE AND WAR – appeal from Administrative Appeals Tribunal – claim under Veterans’ Entitlements Act for war-caused death from liver cancer resulting from alcohol abuse – proper application of Statement of Principles in determining whether proposed hypothesis reasonable – failure to form opinion as to existence of criteria for diagnosis of alcohol abuse – failure to form opinion as to factor connecting alcohol abuse with veteran’s service – interpretation of definition of “experiencing a severe stressor”

Veterans’ Entitlements Act 1986 (Cth) ss 120A, 126

Norton and Repatriation Commission [2008] AATA 1 reversed
Repatriation Commission v Deledio (1998) 83 FCR 82 cited
Repatriation Commission v Stoddart (2003) 134 FCR 392 cited
Woodward v Repatriation Commission (2003) (2003) 131 FCR 473 cited

REPATRIATION COMMISSION v LORRAINE NORTON

VID 60 OF 2008

HEEREY J
5 AUGUST 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 60 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	LORRAINE NORTON Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	5 AUGUST 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed and the decision of the Tribunal on 2 January 2008 be set aside.

2.The matter be remitted to the Tribunal differently constituted for further hearing and determination according to law.

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	VID 60 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	LORRAINE NORTON Respondent

JUDGE:	HEEREY J
DATE:	5 AUGUST 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The late Mr Perrin Goodwin served in the Australian Army in Vietnam from 2 April 1969 until 4 March 1970.  He made a claim under the Veterans’ Entitlements Act 1986 (Cth) for compensation for allegedly war-caused liver cancer caused by cirrhosis of the liver. His claim was refused by the Repatriation Commission and that refusal was affirmed by the Veterans Review Board. Subsequently to the Board’s decision Mr Gordon died as a result of the cancer. The present respondent, as executrix of his estate, appealed under s 126 of the Act to the Administrative Appeals Tribunal, which upheld her appeal: Norton and Repatriation Commission [2008] AATA 1. The Commission now appeals to this Court.

2. The operation of the reasonable hypothesis mechanism and the reverse onus of proof under the Act are explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.

   The hypothesis said to be raised

3. The hypothesis said to be raised by Mr Goodwin’s claim for the purposes of s 120A of the Act relied on the Statement of Principles Concerning Alcohol Dependence or Alcohol Abuse SoP No 76 of 1998.  It was that (i) “severe stressors” related to his service (ii) caused alcohol dependence or abuse which (iii) caused the cirrhosis which (iv) caused the liver cancer.  Steps (iii) and (iv) were not in dispute. 

4. There was an alternative hypothesis, relying on SoPs No 1 of 2000 and No 101 of 2007, that the stressors caused generalized anxiety disorder which in turn caused the alcohol dependence or abuse and the subsequent cirrhosis and cancer.  This was rejected by the Tribunal and was not relied on by the respondent on the present appeal.

5. “Alcohol dependence” and “alcohol abuse” are defined in SoP No 76 of 1998 in mutually exclusive terms.  The Tribunal based its conclusion on a finding as to the latter, which was defined in cl 2(b) of the SoP in these terms:

   the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence.  Additionally, signs of tolerance or withdrawal are absent.

   The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows

   A.A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:

   (1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home

   (2)recurrent alcohol use in situations in which it is physically hazardous

   (3)recurrent alcohol-related legal problems

   (4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol

   B.The symptoms have never met the criteria for alcohol dependence.

6. Clause 5 of the SoP specifies the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the circumstances of the veteran’s service.  The specified factors which the Tribunal at [72] found were raised by the material were:

   (b)experiencing a severe stressor within the two years immediately before the clinical onset 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…

7. Clause 8 of the SoP provides that

   “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.

8. The stressors alleged were:

   1.Participation in a football match on the day of his arrival in Vietnam.

   2.The dangers inherent in being in a war zone.

   3.Having to perform picket duty and paying for others to perform that duty for him.

   4.Being housed approximately 600 metres from the landing pad for helicopters carrying wounded soldiers to the 1^st Australian Field Hospital.

   5.Being accused of theft in a Vietnamese bar away from the base and then being forced to strip before being searched.

9. From what Mr Goodwin told a number of doctors and also from the evidence of a military historian, Mr Hugh Conant (Lieutenant Colonel, Retired), the details of these incidents before the Tribunal were as follows:

   1.On Mr Goodwin’s first day in Vietnam he participated in a football match at a police barracks football ground, about five kilometres away from the base, in front of a mostly Vietnamese crowd.  He told Dr Walton, a consultant psychiatrist who examined him on behalf of the Commission: “We were surrounded by armed Vietnamese.  I didn’t know what was going on.  I was just nervous”. 

   2.According to Mr Conant, Mr Goodwin’s duties were mainly clerical and conducted in a relatively safe environment.  There were no ground attacks on the base during Mr Goodwin’s time there, although accidental weapon discharges occurred occasionally which posed very small risk to soldiers.  Dr Walton reported Mr Goodwin as stating “I was on edge”.

   3.Mr Conant confirmed that Mr Goodwin would have participated in such duties and that it was common for servicemen to pay others to do their allotted picket rounds.  If the change was approved by a non-commissioned officer, this was legal. 

   4.The distance between the pad and Mr Goodwin’s worksite at 25^th Supply Platoon was such that he would be unable to see the wounded or their injuries.  The pad was 45 metres from the hospital.  Mr Goodwin told Dr Walton that the landing of the helicopters and transporting of wounded soldiers caused him to have thoughts such as: “It’s happened to them, it could happen to you”.

   5.Mr Conant suggested that such an event would have been unusual as most of the thieving was done by bar staff.  It would have been expected that other Australian servicemen would come to Mr Goodwin’s help.  Mr Goodwin had stated that Military Police came to his assistance.  Mr Goodwin identified the bar theft accusation as most probably occurring in January 1970 but was unable to provide names of witnesses as none of his friends were with him at the time.  Mr Conant interviewed others for the report but none could remember such an event, although that did not mean it did not happen.  There were records of assaults on and murders of Australian servicemen in South Vietnam, but these were very infrequent. 

   The application of a Statement of Principles

10. The Tribunal was required to follow the approach explained by the Full Court in Deledio at 97-98:

    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 [Repatriation Medical] 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.

    The Tribunal’s reasoning

11. Relevantly for present purposes (ie ignoring the anxiety disorder based hypothesis which is no longer relied on) the Tribunal at [65] found that a reasonable hypothesis relating to a causal connexion between Mr Goodwin’s operational service had been raised, namely that

    a stressor of sufficient severity might have resulted in the worsening of pre-existing alcohol abuse or dependence.  

    (Emphasis in original.)

12. The Tribunal said at [66], after referring to a number of medical reports, that it was unable to find in the reported histories the necessary criteria for alcohol dependence “and thus (found) that Mr Goodwin suffered from alcohol abuse”.  (Emphasis in original.)

13. The Tribunal then set out what it called the “necessary criteria for such a diagnosis [scil of alcohol abuse]” included in SoP No 76 of 1988 (quoted in [5] above).

14. The Tribunal then at [68] posed for itself the question whether the alcohol abuse “resulted from the objective/subjective effect of a severe stressor that might evoke intense fear (Repatriation Commission v Stoddart (2003) 134 FCR 392)”. It said at [69] that the “relevant factors” were those in cl 5 (a), (b) and (d). (Clause 5(b) and (d) are quoted at [6] above; cl 5(a) refers to suffering from a psychiatric disorder at the time of onset of alcohol abuse – as already mentioned, this is no longer relevant). The Tribunal said that “Mr Goodwin met these criteria”.

15. After rejecting the anxiety disorder hypothesis the Tribunal said (all emphasised words are in the original):

    72.      The Tribunal finds that the stressors nominated by Mr Goodwin do not meet the severity delineated in DSM-IV [a diagnostic manual] and adopted by SoP No 1 of 2000, concerning GAD [generalised anxiety disorder], but do meet the requirements of Factor 5(b) of SoP No 76 of 1998 which states:

    ...
    5(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
    ...
    5(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse;...

    73.      This SoP defines experiencing a severe stressor in the following terms:

    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 [emphasis added].

    74.      The Tribunal considers that the inclusion of the word might in this definition lowers the standard of proof.  Might is defined in the Short [sic] Oxford Dictionary (Third Edition), amongst other definitions, as expressing a possibility.  Both Dr Walton and Dr D’Ortenzio have related such a possibility and Dr Percival qualified it as a probability.  The use of the term might in the Tribunal’s opinion shifts the weight in the assessment in the objective/subjective analyses (Stoddart) of claimed stressors toward the subjective analysis; and in light of the psychiatric opinion, the Tribunal finds that the stressors described and in particular the bar theft accusation and search, do meet the SoP’s criteria.

    75.      The second of the four elements of this complex hypotheses argued in the alternative to the first is upheld; and as a result the remaining two elements flow directly from this finding; resulting in the decision that Mr Goodwin’s death was causally related to his operational service…

    Fitting the template of the SoP

16. In my opinion, the Tribunal erred by failing to form an opinion whether the alcohol abuse hypothesis fitted, or was consistent with, SoP No 76 of 1998 (Deledio step 3).  The Tribunal did not identify, in the material before it, necessary elements which the SoP required.

17. Although there was ample material as to Mr Goodwin’s heavy drinking while in Vietnam, the diagnostic criteria for “alcohol abuse” in cl 2(b) of the SoP requires very specific manifestations (as set out at [5] above): “recurrent” use resulting in failure to fulfil major role obligations or in physically hazardous situations, or recurrent alcohol-related legal problems or social or interpersonal problems. There was no attempt to identify such manifestations in the material.

18. Further, the Tribunal did not attempt to identify the date of clinical onset or clinical worsening of alcohol abuse so as to see whether the same occurred within two years of Mr Goodwin’s experiencing the alleged stressors.  This was a factor which had to exist before it could be said that a reasonable hypothesis had been raised connecting the alcohol abuse with the circumstances of Mr Goodwin’s service: cl 5(b) and (d).

    “Experiencing a severe stressor”

19. The definition of this expression in cl 8 of the SoP is set out at [7] above.

20. The construction which Full Court decisions have placed on this expression in the context of the SoP can be summarized as follows:

    1.The event must be one which (i) the person actually perceived as involving actual or threatened death or serious injury and (ii) which could reasonably be so perceived by someone with that person’s knowledge and experience.  There are both subjective and objective elements: Repatriation Commission v Stoddart (2003) 134 FCR 392 at [22], [30].

    2.It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31].

    3.To be “confronted” with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission (2003) 131 FCR 473 at [123].

    4.“Risk” is used in the sense of “an indication of probable evil to come: something that gives indication of causing evil or harm”: Stoddart at [36].

21. In the passage at [74] of its reasons, quoted at [15] above, the Tribunal misunderstood the term. The use of the word “might” has nothing to do with “shift(ing) the weight … towards the subjective analysis”. The word “might” accommodates the possibility that a person of particular fortitude might be confronted with an event involving, for example, threat of death, but does not react with “intense (or any) fear, helplessness or horror”. Such a person would be, literally, fearless. Nevertheless, such an event might evoke the actual, and objectively reasonable, intense fear etc in an ordinary person. At the other extreme, the definition excludes an event which (objectively) does not have the possibility of evoking the reaction of intense fear etc. The definition thus sets out the limits within which the Stoddart subjective and objective tests are to be satisfied.  The concluding part of the definition (“which event or events…”) is setting out the objective criteria which the event must satisfy.  Of course, the event must also be one which the person (subjectively) perceived as involving a threat of death etc and which a reasonable person could (objectively) so perceive.

22. Since this matter will have to be remitted, I do not think I should say anything further about the merits of the events alleged to constitute severe stressors.  At Deledio step 3, a fact finding exercise is not involved (in contrast to step 4). 

    Orders

23. The appeal will be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal differently constituted, for further hearing and determination according to law.  In its notice of appeal the Commission did not expressly seek an order for costs.  Since it is not suggested that the respondent was responsible for the errors of the Tribunal, I do not propose to make any order for costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:        5 August 2008

Counsel for the Applicant:	J K Macdonnell
Solicitors for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	D de Marchi
Solicitors for the Respondent:	De Marchi & Associates

Date of Hearing:	23 July 2008
Date of Judgment:	5 August 2008