Shingles v Dfrdba
[2005] FMCA 1251
•16 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHINGLES v DFRDBA | [2005] FMCA 1251 |
| ADMINISTRATIVE LAW – Appeal from AAT – error of law – failure to take relevant consideration into account – considerations relevant to determine the percentage of total incapacity of the person in relation to civil employment. ADMINISTRATIVE LAW – Appeal from AAT – error of law – failure to provide adequate reasons – decision summarising and recounting evidence – no findings as to acceptance or rejection of various experts. PENSIONS – Defence Forces – Defence Forces Retirement Benefits Act – assessment of percentage of total incapacity of the person in relation to civil employment – relevant considerations. |
| Administrative Appeals Tribunal Act 1975, s.44 Defence Forces Retirement Benefits Act 1948, ss.51, 52, 53 |
| Bos, Re and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663 Defence Force Retirement and Death Benefits v Heffernan (1978) 21 ALR 709 Total Marine Services Pty Ltd v Kiely [1998] 153 FCA; (1998) 51 ALD 635 |
| Applicant: | GRAHAM JAMES SHINGLES |
| Respondent: | DEFENCE FORCE RETIREMENT & DEATH BENEFITS AUTHORTIY |
| File Number: | MLG 1338 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 11 March 2005 |
| Date of Last Submission: | 11 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | KCI Lawyers |
| Counsel for the Respondent: | Mr Dube |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the appeal be allowed.
That the application of the appellant be remitted to the Administrative Appeals Tribunal to be heard and determined according to law by a differently constituted tribunal.
That the respondent do pay the applicant’s costs of and incidental to the appeal as quantified by agreement , or failing agreement as taxed by a Registrar of the Federal Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1338 of 2004
| GRAHAM JAMES SHINGLES |
Applicant
And
| DEFENCE FORCE RETIREMENT & DEATH BENEFITS AUTHORITY |
Respondent
REASONS FOR JUDGMENT
This is an appeal under section 44 of the Administrative Appeals Tribunal Act (1975) (‘the Act’) from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 17 May 2004 (Shingles and Defence Force Retirement and Death Benefits Authority [2004] AATA 492).
The appellant was the applicant in the Tribunal proceedings. He applied to the Tribunal for a review of a decision made by the respondent pursuant to the Defence Forces Retirement Benefits Act 1948 classifying him as having a 20% incapacity and thus falling within Class C of the appropriate classifications under section 51 of the Act.
The Tribunal conducted hearings over four days in October 2003 before giving a decision in the matter on 17 May 2004. On
8 September 2004 a notice of appeal was lodged in the Federal Court and the matter remitted to the Federal Magistrates Court on 19 October 2004.
The Tribunal found the percentage incapacity of the applicant to be 25%. As this was less than the 30% limit provided for in Class C the Tribunal affirmed the classification of the applicant under Class C of the Act.
Background
The appellant joined the Australian Army on 10 February 1969 as a volunteer. He had left school at the age of 15 and worked as a farm hand (see paragraph 9 of the Tribunal’s decision).
Prior to enlisting in the armed services the appellant had worked on farming properties in New South Wales as a farm hand. Whilst a member of the defence forces he completed a course described as a ‘Storeman Tech’.
From 10 December 1970 he served in Vietnam. During the course of his service in the south of Vietnam he experienced and witnessed a number of traumatic events. He received medical treatment including a psychiatric assessment. He was discharged from the Army in October 1971. Some examples of Mr Shingles’ experiences in the army were set out in the Tribunal’s decision as follows:
10.In Vietnam, as well as undertaking routine patrols outside the base, Mr Shingles also undertook duty on the wire perimeter of the base, which was patrolled overnight. Mr Shingles stated that he had nightly contact with the enemy, sometimes minor but also involving more serious occurrences. He described seeing “bright lights” which suggested to him that it was the enemy firing around his camp. Mr Shingles described himself as becoming a ‘nervous wreck’ because he was left with the impression that the enemy was moving at close range through the area. Mr Shingles explained that his camp was next to a helicopter pad and he would see helicopters come and go with the wounded and dead. He also described seeing the seriously burned victims of flame-throwers who had been “burnt to a crisp”.
…
12.Mr Shingles described another incident which occurred when he was travelling to Nui Dat in about January 1971. At that time, he saw South Vietnamese regional soldiers shoot four Viet Cong prisoners. Mr Shingles described this as murder and stated that he was very shocked.
13.Another incident occurred when a friend of Mr Shingles was so horrified at his experiences in Vietnam that the soldier deliberately shot his foot off in order to hasten his opportunity to return to Australia. Mr Shingles helped his friend at the time of this incident and described the friend’s foot as “just hanging off”. Mr Shingles’ friend later lost his foot.
14.Another incident occurred when a soldier was blown up whilst using white spirit and diesel to burn out the latrines as part of a routine cleaning exercise. Mr Shingles also told the Tribunal about one Christmas Day, when another friend became inebriated and then shot a number of allied soldiers.
During his time in the army he experienced considerable difficulty with his feet, the Tribunal describing the events during his period in Vietnam that related to his feet as follows:
15.Mr Shingles informed the Tribunal that in the Army he experienced considerable trouble with his feet, starting in about May 1970, which is when he first received treatment. This occurred after his core training. Mr Shingles continued to have more trouble with his feet in Vietnam. He was given longer waterproof Army boots which were laced halfway up his leg and contained an inner sole and an aluminium plate to protect his feet. These boots provided no assistance to him, and because of his painful bilateral foot condition, he was provided with Army-issue sandshoes in about late December 1970 or possibly by 16 January 1971 (T5, p10). Mr Shingles would wear these sandshoes whilst on patrol which he undertook two or three times per week up until the end of February 1971, a period of approximately six weeks. He had a great fear in Vietnam of treading on “pungi” sticks, which were booby traps set by the enemy, consisting of sharpened bamboo poles which had human excrement smeared on them and were dug into the ground and camouflaged. Anyone treading on the “pungi” sticks experienced great pain and obvious infection if they penetrated the skin. Mr Shingles was also afraid of the snakes and scorpions in the area, particularly given the relatively unprotected footwear he was forced to wear because of his bilateral foot condition. Corporal Doug Lindgren, sought permission not to take Mr Shingles out on patrol because of the obvious danger of wearing sandshoes, but permission was denied (T83, p135). Mr Shingles later consulted the Army Medical Officer who said that due to Mr Shingles’ foot condition, he should not be in the Army, let alone in Vietnam. In July 1971, Mr Shingles had an operation on his feet to remove some spurs and again had further surgery on his feet in 1976 for a similar procedure.
The Tribunal accepted that he was suffering from post traumatic stress disorder on discharge and that alcohol abuse or dependence was a consequence of that disorder (see paragraph 73).
The appellant later attempted to rejoin the army as he was unable to settle in civilian work and was drinking heavily. His application was withdrawn after he was found to be unsuitable on medical grounds (see paragraph 19 of the decision).
The appellant was initially granted a 10% disability pension relating to his feet. Although he obtained some employment as a general hand through his father-in-law he was asked to leave the position as he was drinking too much, and he said that his feet were becoming more painful and his nerves were very bad (see paragraph 20 of the decision). His history of employment is set out in paragraph 21 of the Tribunal’s decision as follows:
21. Mr Shingles informed the Tribunal that he had numerous jobs in civilian life. He explained that he tried to run his own business such as an orange juice run, but stated that this did not remain viable because of his alcohol consumption and nerves. At the same time, Mr Shingles was doing part time maintenance work for a real estate agency and his wife was running a boarding house. Mr Shingles worked intermittently at a rock quarry but could not continue due to the difficulty he experienced when wearing boots. He undertook bar work in various hotels as well as casual work in Albury. In relation to this, however, Mr Shingles stated that the relevant Union at that time told him he had to wear steel-capped boots, which he could not do. Mr Shingles worked in Canberra in 1978/1979 but continued to consume alcohol, further explaining that he was self medicating, as a way of trying to cope with his “nerves”. Mr Shingles stated that he was dismissed from various positions during that period. In 1979 to 1980, Mr Shingles had a number of short term positions but again was having problems with his feet and having to deal with people. In 1980, Mr Shingles had his own trucking business for approximately ten months and (with his own truck) would make deliveries to Brisbane, working six to eight hours at a time, two or three days per week. In 1981, Mr Shingles worked interstate for Ansett making deliveries between Melbourne and Sydney. This work ceased because he lost his licence in about 1984. Mr Shingles worked at the Cowra Abattoir and, when he lost his licence, he swept the floors of the abattoir up until 1989. At various times, when he did have his licence, Mr Shingles undertook casual driving. In 1989, Mr Shingles broke his right ankle and was on Sickness Benefits for six or seven months. After that time, he worked casually, delivering goods around Sydney. He lost his licence for three years in 1990 or early 1991 and then was provided in 1992 with the Special Rate or the “TPI pension”.
The appellant’s personal life slowly deteriorated over the following years, as is briefly recounted by the Tribunal at paragraph 26 where the Tribunal says:
26.There is a report from Dr D Li, General Practitioner, dated 2 March 1990 which reported anxiety, insomnia, but no reports prior to that (T42, p75). In relation to these symptoms, Mr Shingles stated that he was disturbed at night and this has been happening for many years, although he could not point out any reference to this in the contemporaneous material. Mr Shingles explained that he did not tell anyone about his symptoms in those days although he believed he had told Dr Duncan about nightmares in 1989. Mr Shingles further noted that the dreams he experienced were of being overrun by thousands of Viet Cong whilst he was patrolling on the wire perimeter of the camp. He stated that the dreams involved “blood exploding” everywhere. He noted that Corporal Lindgren was in the same tent as Mr Shingles and had advised that he seek some help as Mr Shingles would be “screaming his head off” in his sleep. Mr Shingles stated that this started in about 1972. In civilian life, Mr Shingles noted that he would wake up at times finding himself trying to strangle his wife, thinking she was an enemy soldier. Mr Shingles noted that in about 1977 or 1978 he took his child, without consent, from the family home until the police caught up with him a few months later. Mr Shingles stated that Mrs Shingles did not want him to have anything to do with her or their child because of his drinking and his anxiety.
Relevant legislation
Section 51 of the Defence Forces Retirement Benefits Act 1948 provides for the authority to determine the relevant member’s percentage of incapacity in relation to civil employment by reference to three ranges:
51. Classification in respect of incapacity …
(2) Where a person (not being a person to whom section 52A applies) is, or is about to become, entitled to benefit by virtue of subsection (1), the Authority shall determine the percentage of total incapacity of the person in relation to civil employment and shall classify the person according to the percentage of incapacity as follows:
Percentage of Incapacity Class
60 or over A30 or over but less than 60 B
Less than 30 C…
(5) This section does not apply to a person who retires on or after 1 October 1972.
(6) Where a member who is a contributor has, before 1 October 1972, been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorised in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.
Under s.52 the rate of pension payment varies depending upon the classification under s.51. Most importantly:
a)a member classified under ‘Class C’ is not entitled to the payment of an ongoing pension; and
b)pursuant to s.53, a member initially classified under ‘Class C’ is not entitled to be reclassified at any later date.
Thus, whilst the appellant may now be unable to work as a result of the progression of his initial conditions, he would not be entitled to have his classification altered to ‘Class B’ or ‘Class A’ if initially classified under ‘Class C’.
In this case the extent of incapacity was related to two areas. The applicant has orthopaedic impairments with respect to his feet and he also suffers from post traumatic stress disorder.
The Tribunal’s reasons
The Tribunal, in its reasons, summarised the evidence of the appellant and the evidence and opinions of each of the medical professionals called. Between one and two pages of reasons was devoted to each of the medical experts.
The Tribunal referred to the decision of Davies J in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 and made brief findings as to the appellant’s incapacity:
75. The Tribunal now turns to the central issue in this matter, which is the degree of incapacity expressed in percentage terms, in relation to Mr Shingles’ condition of the lower limbs. In reaching a decision on this issue, we note Re Thomson and Defence Force Retirement and Death Benefits Authority (supra) which while dealing with section 34 of the 1973 Act, provides some guidance in this matter. Davies J stated at 433:
“The width of the range of employment is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but may preclude the person from working more part-time or intermittently. Thus the determination of a percentage is not to be undertaken as if it were a mathematical calculation. Rather, it is a value judgement of the extent to which, expressed in percentage terms, and taking into account only the matters set out in subsection 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment.
On the day after discharge, and for some time after that, Mr Shingles was able to work as a storeman and in other associated positions in full-time employment. The Applicant was able to wear soft shoes and while requiring another operation to his feet in 1978, appears (from oral evidence provided by Mr Shingles and from contemporaneous documentary evidence) to have continued in employment. On at least one occasion, Mr Shingles was able to work in his own business on an orange juice run in addition to providing part-time maintenance work for a real estate agent. The Tribunal also finds that while the bilateral foot condition worsened in 1989 after Mr Shingles fractured his right ankle, he certainly was not operating at the day after discharge at a degree of incapacity which would indicate moderate incapacity as reflected in the B classification of 30 to 60 per cent.
76. In relation to Mr Shingles’ condition of post traumatic stress disorder, the Tribunal has accepted that this condition was present at the time of retirement but again, when reference is made to the contemporaneous material, the degree of impairment is not made out on all of the material to be greater than 30 per cent. In this regard, the Tribunal notes that in terms of symptoms of post traumatic stress disorder and the secondary condition of alcohol abuse or dependence, the first driving under the influence charge occurred in 1973, two years after discharge. Furthermore, the condition of post traumatic stress disorder, while possibly impacting on the number of short term jobs undertaken by Mr Shingles, did not prevent the Applicant from gaining fulltime employment. The Tribunal also notes that there is no treatment or record of psychiatric assistance until at least the 1980’s. All of the evidence suggests to the Tribunal that post traumatic stress disorder was mild at the time of retirement and that it only assumed prominence, as reflected in reports from psychiatrists and by his coming into contact with the police, as a result of the adverse effects of alcohol consumption, occurring years after retirement and more especially in the late 1970’s and 1980’s. Hospital admission for post traumatic stress disorder did not occur until 1991. The Tribunal also notes the Special Rate Pension was granted in 1992, reflecting that Mr Shingles was totally and permanently unable to work at that time.
At paragraph 77 of the decision the Tribunal said:
The Tribunal must make its determination based on all of the material available to it. This is a situation where contemporaneous records in addition to more recent evidence must be weighed up.
The Tribunal then generated a table setting out, in summary form, the conclusions of the experts as to percentage incapacity and the Tribunal’s findings:
Expert
Recommended Percentage of Incapacity for Bilateral Achilles Tendinitis
Recommended Percentage of Incapacity for Post Traumatic Stress Disorder
Dr G Altman, Consultant Psychiatrist Moderate incapacity to the level of 30 to 60 per cent. Dr A Robertson, Consultant Psychiatrist and General Psychiatrist Moderate disability to the level of 40 per cent. Dr A Duncan, Psychiatrist Hard to accept a higher incapacity rating than 30 per cent in 1971. Dr W E Mickleburgh, consultant Psychiatrist No assessment of incapacity made in percentage terms at the time of discharge as medical reports lacked enough information to allow it. Dr A Sachdev, Orthopaedic Surgeon At the time of discharge incapacity would have been between 10 and 30 per cent. The Applicant now has a moderate impairment between 30 and 60 per cent. Dr P Conrad, Orthopaedic Surgeon In his report, a 35 per cent incapacity at the time of discharge. At Hearing, an assessment at the time of discharge of incapacity of between 10 and 30 per cent was fair.
After setting out the table the Tribunal said:
As we have said, it is always difficult in these matters to achieve a determination without indulging in speculation or unsubstantiated assumptions. The assessments contained in the above table do not all reflect incapacity at the time of discharge. Thus, while the Tribunal has determined that there was definite incapacity for civil employment as a storeman or store-person, the Tribunal does not conclude that at the day after retirement, the degree of the incapacity for the combined conditions of bilateral Achilles tendinitis with exostosis of os calcis and post traumatic stress disorder could amount to more than 30 per cent. Given all the evidence, the Tribunal considers that on the day after discharge, Mr Shingles had a 10 per cent incapacity for his bilateral Achilles tendinitis with exostosis of os calcis and a 15 per cent incapacity for his post traumatic stress disorder, providing a total incapacity of 25 per cent. In reaching this determination, the Tribunal considers that the feet and post traumatic stress disorder conditions must be considered together as their effects on the Applicant’s subsequent employment are inextricably linked.
Grounds of appeal
The applicant argues that there were a number of errors made by the Tribunal. Whilst there are 6 grounds of appeal listed in the Amended Notice of Appeal, the issues fall into the following areas:
a)Interpretation of s.51;
b)The appropriate considerations; and
c)Failure to provide adequate reasons for the decision.
Interpretation of section 51
Central to any decision under s.51 is the meaning of ‘percentage of total incapacity of the person in relation to civil employment’.
‘Employment’ is defined in s.82j for the purposes of Part VIc of the Act, however this section is not in Part VIc and the definition in s.82j is therefore of little assistance in this case.
The way that the provision should be approached was considered in Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663. The AAT, with Brennan J (as his Honour then was) presiding, said:
Any determination of a "percentage of total incapacity" requires a comparison between the incapacity of the person at the time of the determination and an entire loss of capacity for these are the components which yield the percentage. A comparison in percentage terms requires the selection of the appropriate point upon a scale which runs from 0 to 100, a scale which runs from an undiminished capacity (0%) "in relation to civil employment" to a total incapacity (100%). A moment's reflection reveals the difficulty of the task which confronts the Authority. What is comprehended by the phrase "civil employment"? What is the nexus between incapacity and civil employment which is expressed by the phrase "in relation to"? The uncertain connotation of the terms may lead to unevenness in administration of the Act for the statutory test may take on different meanings in the minds of those who administer its provisions. It is necessary therefore to define the meaning of s.51(2) in order rightly to apply the relevant principles to the facts of the case.
"Civil employment" comprehends both an engagement to work, whether under a contract of service or for services, and the remuneration or benefits which are the tangible fruits of such an engagement.
"Incapacity" in relation to civil employment thus comprehends an incapacity in relation to the engagement of the person to work and in relation to the earning of remuneration and other work - associated benefits. Diminution in earnings is not the only criterion for determining the percentage of that incapacity - indeed there may be cases where there is a substantial incapacity affecting the employability of a person entitled to benefit which does not produce any, or any significant, effect upon his earnings. On the other hand, a relatively minor diminution in employability may entail a large loss of income, and occasion a substantial percentage incapacity.
"Incapacity in relation to civil employment" is a wider concept than the "ability to earn income". An "incapacity" may be said to be "in relation to" civil employment if the opportunities to engage in civil employment and to derive benefits from that employment are restricted by reason of the incapacity.
If there be no incapacity of the relevant kind, a person's talents - his education, training, skills, physical strength, personality or other attributes - open to him a range of employment opportunities. The range may cover opportunities for engaging in various kinds of employment, for earning various levels of remuneration and for deriving tangible and other benefits. These are the opportunities which are appropriate to the individual - his own range of employment opportunities estimated by reference to the talents which, but for the incapacity, he would have had. When he suffers an incapacity, some of these opportunities are denied to him. He suffers an incapacity in relation to civil employment. A comparison between the lost opportunities and the whole range of the individual's employment opportunities provides the measure of his percentage incapacity.
The comparison is made and the percentage of any incapacity is determined by reference to the importance which the lost opportunity has for the individual. That is not to say that importance depends upon the individual's subjective assessment of his incapacity, or upon his emotional reaction to the loss of the employment opportunity. An objective assessment is required which takes account of the circumstances peculiar to the individual. An objective assessment may reveal that a significant physical disability, e.g., the amputation of a hand, is of much greater importance to a man whose talents limit him to labouring than to one whose talents qualify him for clerical work. The loss of any employment talent is of more importance to one whose talents are only marginally sufficient to secure employment in good economic conditions, for he will assuredly lose employment opportunities in times of adverse economic conditions. However, the determination of percentage incapacity does not vary with the swing of the economic pendulum. Employment opportunities are estimated by reference to the talents which the individual possesses, and it should be assumed that the talents which he had and the talents which he would have had would give or would have given opportunities for employment in which those talents would be or would have been used. Once the extent of the lost opportunities is assessed, the importance of that loss may be assessed and the percentage incapacity thereby determined. Economic changes, or the prospect of economic changes, will have varying importance for the individuals whose percentage disability is to be determined. Events may prove the initial determination to be right or wrong. They may show that the percentage disability (which was determined after taking into account the various employment opportunities which were lost or likely to be lost) was determined at too high or too low a percentage. The error that thus becomes apparent may be corrected either on the application of the person entitled to benefit or by the Authority on its own initiative. But error will not be shown merely by the occurrence of an event which the Authority had already taken into account.
In Freeman and Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156 the Full Court of the Federal Court referred to Bos with approval.
In 1979 s.53 of the Act was amended to provided for a definition of the test to be applied as it appeared in that section, by adding the following:
53. Reclassification in respect of incapacity…
(1A) In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a pensioner; or
(aab) what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a pensioner who has died;
the Authority shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the pensioner;
(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c) the degree to which any physical or mental impairment of the pensioner, being a prescribed physical or mental impairment, has or had diminished the capacity of the pensioner to undertake the kinds of civil employment referred to in paragraph (b);
(d) such other matters (if any) as are prescribed for the purposes of this subsection.
(1B) In subsection (1A), prescribed physical or mental impairment , in relation to a pensioner or a deceased pensioner, means:
(a) a physical or mental impairment of the pensioner that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the pensioner was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b) any other physical or mental impairment of the pensioner causally connected with a physical or mental impairment referred to in paragraph (a).
At the same time that parliament added this definition to s.53 it altered the corresponding provisions of the 1979 Act both with respect to the test for initial classification and re-classification. In the second reading speech the Minister made statements that the intent of the provisions were that only the disabilities causing retirement or causally connected thereto should be taken into account (see Hansard, House of Representatives, 1 March 1979 at page 532). The reason for the amendments appears to have been the Federal Court decision in Defence Force Retirement and Death Benefits v Heffernan (1978) 21 ALR 709. Arguably parliament did not amend s.51 of the 1948 Act on the assumption that all of the initial claims under that Act would have been made by 1979.
Following the amendment to the sections (other than s.51), in Re Thomson and Defence Force Retirement and Death Benefits (1987) 6 AAR 424 Davies J said that:
Most employees hold one job at a time and many, particularly skilled tradesmen and professional persons, undertake one type of work throughout the whole of their working life, notwithstanding that they may have a capacity and even a qualification to undertake some other employment. The width of the range in employment opportunity is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but it may preclude the person from working more than part-time or intermittently. Thus, the determination of a percentage of incapacity is not to be undertaken as if it were a mathematical calculation. Rather it is a value judgment of the extent to which, expressed in percentage terms, and taking into account only the matters set out in s 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment.
In Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 the Full Court (considering the amended provision in the 1979 Act) said:
17. In the present case, the Tribunal asked whether the respondent's potential would have been realized, and it answered that question by reference to factors in which his disability itself played a part. Both the question and the way in which it was answered involved error. The Tribunal should have asked itself what kinds of civil employment a person with the appropriate skills, qualifications and experience might reasonably undertake, not whether the respondent would in fact have gained employment in particular areas. By the very process of changing the objective question the statute poses into a subjective question concerning the respondent, the Tribunal introduced into its answer factors personal to the respondent which were inextricably bound up with his disability. The measure became confused with the thing to be measured. As a result, the assessment of percentage incapacity was not explained.
In this case, however, there are no impairments or disabilities of the appellant that are arguably outside s.51, even if the same interpretation is given to it as the amended s.53 or the equivalent provisions in the 1979 Act. In the circumstances of this case it remains academic as to whether or not the interpretation set out in Heffernan’s case remains appropriate in light of amendments to equivalent or similar provisions to s.51. As it is not a matter that I must determine to dispose of this appeal it is appropriate that I make no finding upon this issue.
As a result this ground of appeal fails.
The appropriate considerations
In order to appropriately consider the appellant’s claim there were a number of matters about which the Tribunal had to make findings:
a)Ascertaining what were the relevant skills etc of the appellant and the kinds of civil employment which a person with his skills etc might reasonably undertake. That is, to establish the range of employment opportunities that would have been open to the appellant. In establishing the range of employment, there are a number of aspects that should not be overlooked:
i)the width of the range;
ii)the quality of the employment in the range; and
iii)the nature of the civil employment in the range.
b)Determining the degree to which the physical and mental impairment of the applicant has diminished his capacity to so undertake those kinds of civil employment. However, diminution in earnings is not the only criterion as there may be cases where there is a substantial incapacity affecting the employability of a person which does not produce any significant effect upon his earnings.
It is argued that the Tribunal has approached its considerations of ‘civil employment’ by limiting it to the bare capacity to obtain employment rather than the capacity to maintain full time employment for a sufficient time to gain all the reasonable benefits from full time employment.
The Tribunal approached its task in a limited manner from the outset. Despite acknowledging that the appellant had worked as a farm hand and labourer before enlisting (see paragraph 9 of the decision), it proceeded on the basis that ‘the type of civilian employment which Mr Shingles could have reasonably undertaken at the time of retirement was as a store - person’ (see paragraph 74).
The Tribunal has not identified the range of employment, which clearly runs from farmhand and labouring positions through to semi skilled positions such as a storeman. Nor has the Tribunal attempted to clearly identify the nature of the employment, it all being largely manual and as a relatively lower level employee. Whilst the quality of the employment would vary, it appears apparent that it could be as little as casual and short term work to potentially longer term positions with larger companies or government authorities where the appellant would have expected sick leave, long service leave, and employer sponsored superannuation schemes.
The Tribunal set out its findings as to the capacity of the applicant to engage in employment at paragraph 75 (quoted above at paragraph [17] of these reasons).
The Tribunal, at paragraph 76 of the decision, approached the matter on the basis that the condition of post traumatic stress disorder, whilst resulting in a number of short term jobs did not prevent the applicant from gaining full time employment.
The evidence about how the appellant obtained employment is set out at pages 234 and 428 of the transcript:
So you had to get work? --- Yes.
What do you remember when you first went to work there? --- My father in law, as I was saying before, worked at the army, he approached one of his friends who was a civilian equivalent to the boss of the civilians and got me a job out there as a general hand.
---
Did you have any problems there? --- I was, because there was a wet mess there, there was a lot of problems with my drinking. In the end I was told by the supervisor I should resign as I was to be sacked from taking too much time off.
In his statement the appellant said:
30. I was employed by the Department of the Army at I.C.O.D Bandianna, Albury Wodonga from early 1972 as a general hand/labourer, spray painter and other general duties.
31.I say that at the time of discharge from the Army I was addicted to and consuming alcohol on a daily basis. The Army camp at Wodonga had a wet mess and I would take every opportunity to consume alcohol.
32. My feet were a constant source of pain and discomfort and consequently between the pain in the feet and the effects of alcohol I was away from work on many occasions. So much so that after about 9 months a Supervisor told me that I should resign as I was to be sacked.
33. I could not obtain employment in Wodonga and moved to Sydney where I obtained employment as a lube operator at Harbord.
34. To try to straighten myself out I purchased an Orange Juice run from Orange Spot. I run the business for between 6 and 9 months, but in the finish lost the run. I would go to the hotels drinking and not to the run. This was due to the continual trouble with my feet, the use of pain killers, my nervous condition and the constant use of alcohol.
…
39.(xiv) I say that the main reasons that I would only stay for a short time with each employer were (a) The effect of alcohol dependency coupled with my nervous state and recollections of Vietnam. (b) The fact that I did not like to be with people and would become unsociable and out of favour with the employer and others with whom I came in contact.
It was agreed by the parties that the appropriate date to consider that appellant’s condition under s.51 is the date of discharge. The AAT can, however, take into account evidence of subsequent events, medical or otherwise, to the extent that such evidence may reflect on the applicant’s state of health at the relevant date. The Tribunal referred to Re X and DFRDV Authority (1981) 3 ALN N37 as support for the proposition that the Tribunal can consider all of the circumstances up to the present time in determining the applicant’s incapacity for employment on discharge. In the course of its decision in Re X the AAT also set out the test to be applied, saying:
Equivalent provisions to these were extensively discussed by the Tribunal in Re Shelton and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 574 and in Re Cassar and Defence Force Retirement and Death Benefits Authority (1979) 2 ALN 665 Note 98. Prior to the amending Act of 1979 the phrase "incapacity in relation to civil employment" had been extensively discussed in Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 1 ALD 31, but as the Tribunal said in Re Shelton, the principles discussed in Re Bos do not appear to have been affected by the 1979 amendments. In short, solution of the problem in terms of the legislation involves ascertaining what were the relevant skills etc of the applicant, the kinds of civil employment which a person with his skills etc might reasonably undertake, and the degree to which any physical or mental impairment of the applicant has diminished his capacity to so undertake those kinds of civil employment. It follows that it is necessary to establish the range of employment opportunities which would have been open to the applicant, and to assess the extent to which those opportunities have been diminished. So short a statement of the task before us inevitably masks a number of problems that can arise, and to some of these we shall have to refer later. It is however necessary at this stage to stress the importance of the word "undertake", as used in the phrase "capacity . . . to undertake" (the kinds of civil employment . . . etc). As was pointed out in Re Shelton (above), "that phrase as much connotes capacity to enter upon, or begin, an employment as much as it connotes capacity to perform it. The pensioner thus must have the capacity to enter upon the employment, and for this purpose he must have capacity, at least within himself, to obtain it, and he must have the capacity as well to carry on with the performance of the employment . . .".
At paragraph 75 the Tribunal concludes that ‘On the day after discharge, and for some time after that, Mr Shingles was able to work as a storeman and in other associated positions in full-time employment.’ The Tribunal does not appear to have considered his apparent loss of capacity to engage in unskilled labouring work such as a farmhand.
Similarly the Tribunal has not considered the appellant’s loss of the benefits of long term and stable employment. Dr Robertson encapsulated the appellant’s difficulties in this regard in his report of 23 April 2003 where he sated:
It seems highly probable that he was quite severely disabled at the time he left the Army. It is to his credit that he attempted to work, and succeeded in doing so for some time. However, his PTSD symptoms and his alcoholism prevented him from ever making a successful career.
This is the type of consideration contemplated by the AAT in Bos. I therefore find that this ground is made out.
Adequacy of reasons
The appellant also argued that there was a failure to provide adequate reasons for the decision.
In Total Marine Services Pty Ltd v Kiely [1998] 153 FCA; (1998) 51 ALD 635, Sackville J considered the obligation to provide reasons in accordance with s.43(2b) of the Administrative Appeals Tribunal Act saying:
The general approach to the construction of s 43(2B) is reasonably well settled, although the application of the sub-section is not always easy: see generally H. Katzen, "Inadequacy of Reasons as a Ground of Appeal" (1993) 1 Aust J of Admin L 33. The relevant principles include the following:
· A substantial failure by the AAT to state reasons for its decision constitutes an error of law: Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), at 573; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (FCA/FC), at 95-96, per Sackville J.
· The duty must be sensibly interpreted and applied, with a view to achieving good and effective administration. It is not necessary that reasons address every issue raised in the proceedings; it is enough that they deal with the substantial issues upon which the decision turns: Dornan, at 567-568; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 (FCA/Wilcox J), at 481. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690, at 691:
"Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include `findings on material questions of fact'."
· Regard must be had to the composition of the Tribunal which (as in the present case) does not necessarily include trained lawyers. Section 43(2B) does not require a standard of perfection: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC), at 157, per Sheppard J.
· A restrained approach to judicial review of AAT decisions is appropriate: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) (1980) 47 FLR 131 (FCA/FC), at 145, per Fisher J. The reasons of the AAT should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FC), at 287, approved in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272.
· The assessment is to be made having regard to the AAT's reasons as a whole: Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029, at 5032, per Lockhart J.
· Despite the above qualifications, if the AAT's reasons do not expose its reasoning process, in the sense that it does not enable a proper understanding to be obtained of the basis on which a decision has been reached, the decision involves an error of law: Australian Telecommunications Commission v Barker (1990) 12 AAR 490 (FCA/FC), at 492; East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 (FCA/Hill J), at 466-467.
In Kiely’s case Sackville J went on to say:
In this case, the AAT summarised at considerable length the evidence given by the employee and the reports provided by the range of medical practitioners and other health professionals who expressed their views on the relatively minor injury the employee had sustained. However, mere recitation of the evidence, or "noting" that certain propositions have been put, does not satisfy the requirements of s 43(2B) of the AAT Act. In Dornan, for example, a report of 178 pages was held not to disclose the Tribunal's reasoning process sufficiently to avoid an error of law.
…
Where conflicting medical evidence is presented, it will ordinarily be incumbent on the AAT to determine which evidence is accepted and which is not and to provide some reasoned basis for the choice: see Australian Postal Corporation v Wallace, FCA/Tamberlin J, 26 February 1996, unreported.
The appellant argues that the Tribunal failed to provide adequate reasons in two respects:
a)That it merely recited the evidence of the appellant and the witnesses without making any findings as to what of the evidence was accepted; and
b)That the Tribunal gave no reasons as to how it reached the particular percentage set out in its conclusion;
The Tribunal summarised the evidence of the appellant and the witnesses through the first 60 paragraphs of the decision. However, the Tribunal did not set out whether they accepted or rejected all or part of any of the evidence of appellant or the various experts. For example:
a)At paragraphs 22 and 23 of the Tribunal decision reference is made to the questionnaires that the appellant had apparently completed on discharge, the contents of which he said were not correct. One of these questionnaires was said by the appellant not to be in his handwriting. It is not clear from the decision what findings the Tribunal made with respect to the truth or otherwise of the contents of these questionnaires. It is not possible to determine from the decision of the Tribunal what use was made of the questionnaires by the Tribunal.
b)There was evidence that Mr Shingles did not tell the doctor at the discharge medical examination in 1971 that he had any health problems. Mr Shingles explained that he just wanted to get out of the army as quickly as he could and thought that if he described his medical problems his discharge would have been delayed (see paragraph 16 of the decision). The Tribunal does not appear to have made any formal finding with respect to this issue, however the terms of the decision indicate that the Tribunal must have accepted Mr Shingles’ explanation of this discharge medical report. Whether this affected the Tribunal’s view of the reliability of either the applicant or the army file was not stated.
c)The appellant gave evidence that he had been a teetotaller before joining the armed forces and by the time of discharge had a significant alcohol abuse or dependency problem. The Tribunal did not make any specific finding as to his alcohol consumption before joining the army.
With respect to the appellant’s credit and reliability as a witness the Tribunal only said:
62. Mr Shingles presented his evidence to the best of his ability considering the affluxion of time since having retired from the Army on 26 October 1971 (T20)
There were also inconsistencies in the conclusions of the Tribunal.
The Tribunal’s findings as to the extent of his alcohol dependency appear at paragraph 76 of the decision. The Tribunal concludes that the applicant only came into contact with the police on an adverse basis as a result of alcohol consumption ‘years after retirement especially in late 1970’s and [presumably early] 1980’s’, yet this appears inconsistent with the statement of the Tribunal that:
18. By 1972 or 1973, when out of the Army, Mr Shingles received his first charge for driving under the influence of alcohol and lost his licence for three years. He lost his licence again in Canberra and was charged for alcohol-related driving offences on two occasions, once when in Brisbane and then in New South Wales. Mr Shingles lost his licence again in 1976. Mr Shingles stated that he had alcohol - related offences incurring fines, having his driver’s licence suspended, or loss of his licence. His last driving under the influence of alcohol charge occurred in early 1990 and it was at this point that the Vietnam Veterans’ Counselling Service began to assist him. Mr Shingles stated that he attended Alcoholics Anonymous in 1978 at the suggestion of an employer who had dismissed him. In 1980, Mr Shingles also attended counselling in Brisbane as well as Alcoholics Anonymous.
The appellant says that the Tribunal also erred in stating that the percentages of incapacity set out in the table at paragraph 77 of its judgment did not all reflect incapacity at the time of discharge, when:
a)Doctor Altman clearly expressed his assessment as being as at the date of discharge (see his evidence at pages 459 to 460 of the transcript as recounted at paragraph 77 of the reasons).
b)Similarly Dr Robertson expressed such a view in his evidence (at transcript pages 479 to 480 and 452), a concession by Dr Robertson from his report which stated 50% (see page 548 of the transcript).
c)Dr Duncan, in the table, is said to express his opinion with respect to 1971, the date of discharge, consistent with his evidence at page 525 of the transcript.
It appears that the Tribunal has proceeded on the basis that the disability percentages set out in the table at paragraph 77 did not all relate to the time of discharge, when in fact all of the percentages did relate to the time of discharge, on the evidence before the Tribunal.
It appears that the Tribunal may have accepted Dr Duncan’s assessment of the percentage incapacity as the Tribunal recounts that:
56.Dr Duncan stated that if post traumatic stress disorder was accepted as being present in 1991, then in relation to how significant the condition had been in 1971 at the time of discharge from the Army, his perception was that Mr Shingles was functioning fairly well at that time. The issue then was whether the symptoms were present in 1971 and Mr Shingles was ignoring them or whether he was just not aware of the symptoms. Dr Duncan concluded that one could make a diagnosis in 1991 of post traumatic stress disorder but that was not to say that in 1971, post traumatic stress disorder was present from the symptomatic point of view. Dr Duncan found it hard to accept a higher incapacity rating than 30 per cent in 1971, when he looked at Mr Shingles from the occupational point of view. Dr Duncan opined that given his understanding of the history, Mr Shingles was a very vulnerable person and less likely to cope with the rigours of Army life than others.
These comments are reflected to some extent by the findings of the Tribunal at paragraph 76 (quoted above in paragraph [17]).
Whilst the Tribunal set out that Dr Duncan concluded that it was ‘hard to accept that the applicant had an incapacity rating of greater than
30 per cent in 1971’ the Tribunal had earlier in its reasons identified at least one cause for significant concern with respect to Dr Duncan’s evidence, stating:
55.The Tribunal noted a report by Dr Duncan dated 17 April 2000 (T119), in which Dr Duncan recorded that at the time, he felt somewhat “shame-faced” when reading his earlier report in which he concluded that Mr Shingles did not have full blown post traumatic stress disorder. Dr Duncan’s most recent thoughts on this matter are that his earlier conclusion was inappropriate (T119, p260).
In recounting the evidence of Dr Altman at paragraphs 27 to 35 of the decision the Tribunal makes no negative comment, nor gives any indication of what parts of Dr Altman’s evidence may not have been accepted.
Similarly, with Dr Robertson the Tribunal sets out a summary of his evidence (without rejecting or doubting any party of it) (at paragraphs 36 to 41) concluding:
41.Dr Robertson thought it probable that at the time of discharge, Mr Shingles would have had 40 per cent incapacity and would have been moderately disabled despite full-time employment. This conclusion was supported because although Mr Shingles was in full-time employment, he had eighteen jobs in short succession. Furthermore, Mr Shingles was suffering from alcohol abuse or dependence, as well as depression and these were highly disabling problems. Further indicia of Mr Shingles’ suffering from post traumatic stress disorder was his failed marriage. Dr Robertson concluded that post traumatic stress disorder causes distress even in the absence of alcohol abuse but the combination of these two conditions confirms the assessment of 40 per cent incapacity. There was no history of any other trauma which could have triggered post traumatic stress disorder in the 1980’s or 1990’s.
As to the percentage incapacity figure reached by the Tribunal with respect to the individual areas of impairment it is notable that with respect to the post traumatic stress disorder three experts provided different estimates of the percentage incapacity, and that importantly two of those experts gave a percentage far greater than the figure struck by the Tribunal. As a result it appears that the Tribunal must necessarily have rejected the percentage assessments by Doctors Altman and Robertson. However, there are no reasons setting out why their opinion was not accepted, nor the considerations that may have impacted upon that evidence.
This is of particular concern in a case where the only expert that appears to have been accepted on a significant point ‘felt somewhat “shame-faced” when reading his earlier report in which he concluded that Mr Shingles did not have full blown post traumatic stress disorder’.
With respect to the orthopaedic experts; Dr Sachdev was of the view that at the time of discharge the appellant’s incapacity was in the vicinity of 10% to 30% and that his impairment was now in the vicinity of 30% to 60%; whereas Dr Conrad expressed the view that at discharge his orthopaedic incapacity would have been 35% (in his report), and between 10% and 30% (during his evidence before the Tribunal).
There are no reasons explaining why the very bottom end of the range given by the orthopaedic surgeons was adopted by the Tribunal.
The final matter relied upon by the appellant was that the Tribunal appears to have added together the two percentage impairments identified for each of the two different forms of impairment without considering the extent, if any, to which they may, taken together, result in a greater or lesser percentage of disability.
It appears to me that the flaw in the approach of the Tribunal is not simply adding the two figures, but the reasoning process by which the Tribunal has approached the overall impairment. The combined effects of the impairments must be taken in the context of the range of civil employment that was previously open to the applicant. Whilst counsel for the respondent argued that the statement of the Tribunal at the end of paragraph 77 shows that they did consider the matter in this light, it does not appear to me to satisfy the requirement for reasons.
In the circumstances I find that the Tribunal has failed to take relevant matters into account in considering the capacity of the applicant to engage in civil employment.
The Tribunal also took into account an irrelevant consideration when considering the appellant’s capacity for employmen;. The Tribunal took into account that the appellant had continued his school education until the age or 18 (see paragraph 74 of the decision) when there was no evidence to support this finding (the evidence being that he left school at 15 years, as recounted at paragraph 9 of the decision).
In this case I find that the Tribunal has failed to provide adequate reasons for its decision and the appeal should also be allowed on this basis.
Conclusion
I therefore order that the decision of the Administrative Appeals Tribunal be set aside, and that the matter be referred back to the Tribunal for further consideration in accordance with law. The costs should follow the event and thus the respondent should pay the appellant’s costs of the appeal.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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