Smith v Repatriation Commission - [2004] FMCA 368

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH v REPATRIATION COMMISSION

[2004] FMCA 368

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether error of law – where error in relation to onus of proof does not affect the outcome – application dismissed.

Veterans’ Entitlement Act 1986, ss.6, 8, 8(1)(a), 8(1)(b), 13(1), 120(1), 120(3), 120A, 120A(3)

Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 36 AAR 484
Repatriation Commission v McKenna (1998) FCA 787
McKenna v Repatriation Commission (1999) 86 FCR 144

Applicant:

MARGARET JEAN SMITH

Respondent:

REPATRIATION COMMISSION

File No:

MZ 1339 of 2003

Delivered on:

10 June 2004

Delivered at:

Melbourne

Hearing Date:

30 April 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Ms A Malpas

Solicitors for the Applicant:

Campbell & Shaw

Counsel for the Respondent:

Ms A McMahon

Solicitors for the Respondent:

Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1339 of 2003

MARGARET JEAN SMITH

Applicant

and

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

Margaret Jean Smith (the applicant) appeals from a decision by the Administrative Appeals Tribunal (the AAT) delivered on 12 September 2003 (the AAT decision).
The AAT decision related to a claim by the applicant made on 16 February 2000 for a war widow's pension pursuant to s.13(1) of the Veterans Entitlement Act 1986 ("the VE Act")
The respondent had made a decision on 23 February 2000 refusing to grant a war widow's pension. That decision was then affirmed by the Veterans Review Board on 16 October 2001. It is that decision which was then reviewed by the AAT and ultimately affirmed.
The applicant had applied for a pension based upon the death of her husband on 29 November 1999 at the age of 79 years. The late Mr Smith was a member of the Australian Army between 15 December 1941 and 4 July 1946. There was no dispute that he had served overseas and the whole of his service constituted operational service.
The cause of death was certified as:
Aspiration Pneumonia – 2 weeks; Posterior Circulation 2, Cerebrovascular Accidents - two weeks; type 2 Diabetes Mellitus - years.
The AAT received a number of documents as evidence and considered evidence given by Dr O'Dwyer who was the treating general practitioner of the late Mr Smith. The applicant and her son gave evidence, together with a family friend. A medical expert, Dr Walton, gave evidence on behalf of the respondent.
At the time of his death the late Mr Smith was in receipt of a service pension but was not in receipt of a disability pension from the respondent. In 1994 the late Mr Smith had made an application upon the respondent for disability pension for the condition of "depression". In January 1995 the respondent made a decision rejecting the claim upon the basis that it could not establish a connection between service and "depressive disorder". Mr Smith did not lodge any appeal against the decision with the Veterans Review Board.
In reviewing the evidence the AAT referred to a proof of evidence dated 26 March 2003 provided by the applicant. Relevantly, that proof of evidence contains the following paragraphs:
“After my husband enlisted I corresponded with him and when he went overseas he did not write about the war. Before he was discharged on the 4 July 1946 he was posted to Tatura as a prison guard on the 1 October 1945. I saw him frequently between 1945 and 1947 and during this period he talked frequently about the war. He was a reader and read anything to do about the war. My son Roger noticed that he was an avid reader of war publications and he concentrated in particular on the areas he had served in.
I noticed he had become a worrier and he kept his feelings bottled up, he also suffered from nightmares. He became very depressed. My husband had become very a different person. We were married on 10 April 1948."
It does not seem to be disputed that during the course of operational service the deceased had been exposed to what are described by the AAT as, "some horrific episodes during service" and that on the basis of the documents lodged it was clear that the deceased had observed the "death of service colleagues". It does not appear to be in dispute that the deceased suffered agoraphobia associated with his detention on a boat travelling to New Guinea in the presence of enemy air raids.
The AAT recites the evidence of the applicant and in particular her belief that the deceased had suffered from stress and had many panic attacks.

The decision

It is relevant to set out the following extracts from the decision which contain key findings which were the subject of submissions by the parties in this appeal:
“57. The late Mr Smith suffered his cerebrovascular accident in November 1999 and succumbed to it also in that month. There is no material which points to him having "experiencing a severe stressor" within 48 hours immediately before the clinical onset of the cerebrovascular accident. Paragraph 4 of the Statement of Principle provides that the factors in paragraph 5 must be related to "any relevant service rendered by the person". That is to say, the factors within paragraph 5 must be related to service by the deceased. "Experiencing a severe stressor" is defined at paragraph 8 of Instrument No.52 of 1999 as:
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 another person's, physical integrity.
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.
58. In so far as this factor is concerned, it could not be said, on the material, that the deceased "experienced a severe stressor" as defined within 48 hours immediately before the clinical onset of cerebrovascular accident. This hypothesis therefore is not "reasonable" because it is not consistent with the template found within the Statement of Principles. Because the hypothesis fails to fit that template it is deemed not to be "reasonable" and the claim in so far as this hypothesis is concerned will fail.
59. The remaining hypothesis concerned paragraph 5(c) of Instrument No.52 of 1999, namely whether the late Mr Smith suffered from a "panic disorder" before the clinical onset of cerebrovascular accident.
60. The "clinical onset" of the cerebrovascular accident was in November 1999 when it was sustained. "Clinical onset" occurs "either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present" (refer Robertson v Repatriation Commission (1998) 20 ALD 668).
61.There is a Statement of Principle with respect to "Panic Disorder" namely No.9 of 1999 (as amended by No.58 of 1999 but which is not relevant for these purposes). These Instruments are the only Instruments with respect to panic disorder within the assessment period.
62. The hypothesis concerning service giving rise to a panic disorder, giving rise to cerebrovascular accident, which was the cause of death, involves a
"sub-hypothesis" where the Instrument with respect to panic disorder must also be satisfied.
63. In Repatriation Commission v McKenna (1998) FCA 787 Goldberg J decided that a "hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles". A Full Federal Court upheld an appeal against the decision of His Honour in McKenna v Repatriation Commission (1999) FCA 323.
64. It follows therefore that Mrs Smith must also have this hypothesis fit or be consistent with the template found within the Statement of Principles for cerebrovascular accident by satisfaction also of the template found within the Statement for Principles for panic disorder.
65. Instrument No.9 of 1999 has three factors only, where one must exist as a minimum before it could be said that a reasonable hypothesis has been raised connecting panic disorder with the circumstances of service namely:
(a) Experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; or
(b) Experiencing a severe stressor within the two years immediately before clinical worsening of panic disorder; or
(c) Inability to obtain appropriate management for panic disorder.
66. "Experiencing a severe stressor" as that phrase is found within factors 5(a) and (b) above is identical in definition to that which appears in the Statement of Principles for cerebrovascular accident (refer earlier).
67. Findings of fact need only be made at stage 4 of the Deledio analysis however in order to "complete" stage 3 it is necessary to make findings with respect to the "clinical onset" or "clinical worsening" of panic disorder. I previously decided on the probabilities that the deceased did suffer from panic disorder. However I am satisfied that the clinical onset of it was not until the mid-1960's (at the earliest) as was the evidence of Mr Smith or from 1971 (at the latest) as was the evidence of Dr O'Dwyer. There is no material which points to the deceased experiencing a severe stressor, as defined, either within two years before the clinical onset of panic disorder or within two years before the clinical worsening of panic disorder. (It is not known when there was a clinical worsening of panic disorder, but it must have been after its onset, therefore either after the mid-1960's or 1971). Additionally there is no material which points to the deceased having an inability to obtain appropriate clinical management for panic disorder. In deed the reverse would appear to be the case, having regard to the extent of his treatment.
68. Accordingly I cannot be satisfied that the factors within Instrument No.9 of 1999 fit the "template" of that Instrument. As was the case in the analysis above concerning the Statement of Principles for cerebrovascular accident, the factors in paragraph 5 must be related to service rendered by the deceased. In the event that the deceased did experience a severe stressor in service it could not be said, noting that the deceased was discharged from service in 1946, that the severe stressor was experienced within two years before the clinical onset or clinical worsening of panic disorder.
69. Accordingly it could not be said that the hypothesis advanced is consistent with the "template" of the sub-hypothesis of panic disorder. The hypothesis is not in those circumstances "reasonable".”

Relevant legislation

The legislative framework set out in the respondent's outline of argument is not in dispute in relation to the relevant provisions which prescribe circumstances in which a veteran's death should be taken to be war-caused.
Section 8 of the VE Act prescribes those circumstances in which the veteran's death shall be taken to be war-caused, including where the death resulted from an occurrence during operational service or arose out of or was attributable to the veteran's war service (ss 8(1)(a) and (b)).
There is no dispute in the present case that the veteran rendered operational service pursuant to s.6 of the VE Act between

15 December 1941 and 4 July 1946.
The question of whether death was war-caused within s.8 of the VE Act is determined by applying s.120(1) and (3) to the claim. Reference is made properly to the High Court decision in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 and as a matter of procedure the decision-maker first applies s.120(3) and, if a reasonable hypothesis is raised by the material, then applies s.120(1). In the present application because the claim was lodged after 1 June 1994 the operation of s.120(1) and (3) is affected by s.120A of the VE Act. Section 120A(3) of the VE Act provides that a hypothesis connecting the death of a person with the circumstances of any particular service rendered by a person is reasonable only if there is in force a statement of principles (SoP) that upholds the hypothesis.
a)The conclusion directed by s.120A(3) - the hypothesis is not reasonable because it is not upheld by the relevant SoP - would oblige a decision-maker to reach a negative decision under s.120(3);
b)the decision-maker would then be required by s.120(3) to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death is war-caused and that conclusion would lead to a decision under s.120(1) that the death is not war-caused.
Both parties referred to the decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. Likewise, the four stages of analysis prescribed in that case were referred to by the tribunal in the following paragraph:
“54. Having identified an applicable Statement of Principle it is then necessary to determine whether the four stages of analysis as prescribed by the Full Federal Court of Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 apply namely:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by 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 respondent referred to the authorities of East v Repatriation Commission (1987) 16 FCR 517 at 530-531 and Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373 in relation to the issue that a reasonable hypothesis requires more than a mere possibility consistent with the known facts. It was submitted, and I accept, that it is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities: it is not sufficient if the material leaves open a hypothesis of connection.

Question of law and grounds

In the notice of appeal the questions of law claimed to be raised on the appeal are as follows:-
(1)Having found that the material pointed to a hypothesis connecting the death of the veteran with the circumstances of his war service did the Tribunal err by failing to find that the hypothesis was consistent with Statement of Principles Number 52 of 1999?
(2)Having found that the veteran had suffered from panic disorder during his lifetime did the Tribunal err by failing to find that the veteran was suffering from panic disorder before clinical onset of cerebrovascular accident as provided by paragraph (c) of No. 5 of Statement of Principles Number 52 of 1999?
(3)Did the Tribunal fail to correctly apply section 120(1) of the Veterans’ Entitlements Act 1986 by making the finding that the clinical onset of panic disorder did not occur until the mid 1960’s?
(4)Did the Tribunal err in finding that the condition of anxiety disorder from which the veteran had suffered for many years was not relevant to the hypothesis relating to the veterans’ psychiatric condition to his war service?
The grounds set out in the notice of appeal are as follows:-
(1)The Tribunal erred in failing to correctly interpret Statement of Principles Number 52 of 1999 in relation to Cerebrovascular Accident and Statement of Principles Numbers 9 and 58 of 1999 in relation to Panic Disorder in finding that the clinical onset of the veteran's panic disorder did not occur until the mid-1960s.
(2)The Tribunal erred in failing to find there was evidence of the clinical onset of panic disorder within two years of relevant stressors.
(3)The Tribunal erred in failing to find on the totality of the evidence that the clinical onset of pain disorder occurred within two years of the veteran's war service.
(4)The Tribunal erred in failing to have regard to the evidence of the applicant that during the period between 1945 and 1947 the veteran had suffered some features of a psychiatric disorder namely: worrying, keeping his feelings bottled up and suffering from nightmares and depressed mood.
(5)The Tribunal erred in failing to find that the veteran had suffered from a psychiatric disorder from about October 1945 when he was posted to Tatura as a prison guard.

Applicant's submissions

At the hearing submissions were made essentially that the AAT had misdirected itself in relation to the burden of proof and the reverse onus which applies in matters of this kind. Reference was made to evidence before the tribunal set out earlier in this judgment.
Specifically, it was submitted that the tribunal erred in the finding it made in paragraph 67 of its decision when it failed to take into account the evidence of the applicant in addition to the evidence of her son who would not have been in a position to say what the deceased was like in the period of two years after his war service, and the evidence of Dr Paul O'Dwyer who had medical records of the deceased having symptoms of panic disorder in the 1960s.
It was submitted the tribunal erred in finding that it could not find a reasonable hypothesis that the deceased had suffered the clinical onset or clinical worsening of panic disorder within two years of his war service. In doing so it was submitted the AAT rejected or overlooked the evidence of the applicant who was the only witness who could describe the deceased's condition at the relevant time. It was submitted that it would not be inconsistent with the relevant statement of principles for the tribunal to accept the applicant's evidence as the basis for a diagnosis of panic disorder in the deceased within two years of his war service.

During the course of submissions counsel for the applicant relied upon the decision of Lees v Repatriation Commission (2002) 36 AAR 484 at 26 which provides as follows:
“26 However, was the error a material one? It is to be recalled that par C of the definition of "generalised anxiety disorder" requires not only that three of the six specified symptoms be associated with anxiety and worry but that some of them be present for more days than not during the previous six months. In context this means in the six months preceding the manifestation of the symptoms within two years, although it is not essential that the condition in fact be diagnosed during that period. Some of the evidence of Dr Ewers concerning what he was told by the appellant might establish the existence of the symptoms within that period but not the frequency with which they were experienced. However Dr Ewers does record in his report that the appellant was keyed up most of the time. This evidence may support a conclusion that at least this symptom was present for the requisite period of time. If so, it might satisfy the definition of "generalised anxiety disorder" insofar as it says "some symptoms (should be) present for more days than not during the previous six months". Accordingly it is not possible to say the error is immaterial.”
Further reliance was placed upon the decision of Repatriation Commission v Towns (2003) 38 AAR 77 at 36 which provides as follows:
“36 There is no complaint that the factual material referred to in the decision was inaccurate, or that the correct principles were not set out. Rather, it is said there are indications that the AAT misdirected itself by referring first to the hypothesis, and then seeking out and focusing on material which supported the hypothesis, and not taking other material into account. In my view, on a fair reading of the reasons, this contention cannot be made out. It is, generally speaking, difficult to establish in circumstances where a decision-maker has set out the relevant material and adverted to the correct principles, that such material and principles have been ignored and not applied. While it is true that there could have been more discussion of the evidence as a whole in the final section of the reasoning of the AAT, I do not think it has been established that the AAT did not take into account the whole of the evidence before it as required by the relevant principles. Nor do I consider that the AAT misdirected itself as to the correct approach. In my opinion, it was open to the AAT, on the material before it, to adopt the view that there was a reasonable hypothesis that the veteran's death was war-caused which possessed some degree of acceptability or credibility, and which was not obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous. The AAT could reasonably consider that there was sufficient support in the material to point to, and not merely leave open, a reasonable hypothesis that the death was war-caused. It is not necessary that the hypothesis should be proven on the balance of probability or be correct as a matter of fact. The threshold is lower in deciding this question.”
Counsel for the applicant was critical of the tribunal's reliance upon the decision of Repatriation Commission v McKenna (1998) FCA 787 referred to in paragraph 63 of the tribunal's decision on the basis that it was claimed that case can be distinguished from the facts and circumstances of the present application.
It was submitted on behalf of the applicant that having found that there was a panic disorder and having found that there were relevant stressors, the reverse onus of proof should apply and the tribunal could not have been satisfied beyond reasonable doubt that the clinical onset or clinical worsening did not occur within two years of war service. Reference was made to the following extract from paragraph 67 of the tribunal’s decision referred to above where the tribunal states:-
“ … There is no material which points to the deceased experiencing a severe stressor, as defined, either within two years before the clinical onset of panic disorder or within two years before the clinical worsening of panic disorder. (It is not known when there was a clinical worsening of panic disorder, but it must have been after its onset, therefore either after the mid-1960's or 1971) …”
It was submitted by the applicant that there was material from the applicant that the deceased had changed after his war service and that was contained in a statement at page 40 of the appeal book where the following passage appears -
“I noticed he had become a worrier and he kept his feelings bottled up, he also suffered from nightmares. He became very depressed. My husband had become a very different person. We were married on 10 of April 1948.”
On the basis of that passage of evidence it was the applicant’s submission that it was not open to the tribunal to make the finding referred to in paragraph 67 of its decision.

The respondent's submissions

Having found the cause of death was due to the effects of cerebrovascular accident, it was submitted by the respondent that the tribunal must then consider whether the material raises a hypothesis connecting the death with the circumstances of service rendered by the veteran.
It is noted that after finding the veteran died from the effects of cerebrovascular accident (CVA), the AAT had to then identify the relevant SoP relating to CVA, which in this case is instrument number 52 of 1999. In SoP 52 of 1999 a number of factors are set out which are described as follows:
“The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting a cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service are …”
SoP 52 then sets out a number of factors. The AAT identified two of those factors as being relevant, namely:
(b) experiencing a severe stressor within the 48 hours immediately before the clinical onset of cerebrovascular accident; or
(c) suffering from panic disorder before the clinical onset of cerebrovascular accident.
The respondent notes that factors 5(b) and (c) of SoP number 52 were relied upon by the applicant.
Reference was made to clause 8 of SoP number 52 which provides the following definitions of 'experiencing a severe stressor' and 'panic disorder':
"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 another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement 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;
"panic disorder" means the presence of recurrent, unexpected panic attacks followed by at least one month of persistent concern about having another panic attack, worry about possible implications or consequences of the panic attacks, or a significant behavioural change related to the panic attacks, as clinically defined in the diagnostic criteria for panic disorder in the Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition, (DSM-IV) and includes panic disorder without agoraphobia and panic disorder with agoraphobia;”
The respondent notes that as the applicant relied upon suffering a panic disorder before the clinical onset of CVA arising from factor 5(c) of SoP 52, the tribunal was required to consider whether the veteran's panic disorder was war-caused.
There is no dispute that the tribunal correctly identified the relevant SoP in relation to "panic disorder" namely, number 9 of 1999. Again, that SoP sets out factors which must as a minimum exist before it can be said that a reasonable hypothesis had been raised connecting panic disorder with the circumstances of a person's relevant service. It is not in dispute that the tribunal identified the relevant factors as follows:
(a) experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; or
(b) experiencing a severe stressor within the two years immediately before the clinical worsening of panic disorder.
SoP 9 of 1999 includes the same definition of "experiencing a severe stressor" as set out above in SoP 52.
It is clear that the tribunal considered whether hypotheses raised or pointed to by the whole of the material were upheld by the relevant SoPs. Specifically, it considered factor 5(b) of SoP 52, namely, "experiencing a severe stressor within 48 hours immediately before the clinical onset of cerebrovascular accident" and found that the clinical onset of CVA was November 1999. It found there was no material pointing to the veteran suffering a "severe stressor" as defined in clause 8 of SoP 52 which was related to service within 48 hours immediately before clinical onset of CVA. It found, therefore, that this hypothesis was not reasonable as it did not fit the template set out in SoP 52.
The tribunal then considered factor 5(c) of SoP 52, namely, "suffering from panic disorder before the clinical onset of cerebrovascular accident" and as this panic disorder was a "sub-hypothesis" it stated that it was required to proceed according to the principles set out in McKenna v Repatriation Commission (1999) 86 FCR 144 (AB 101-102).
The respondent submitted that in McKenna the Full Court held that for a hypothesis to be upheld by the SoP the sub-hypothesis would have to be upheld by its SoP. 'A complex hypothesis (ie, one comprising more than one element or part) can be no stronger than each of its elements or parts.' According to the respondent’s submissions in this case every link in the chain - CVA and panic disorder - is required, according to the respondent, to be upheld by the relevant SoP for that disease.
The respondent referred to the AAT making a finding on the balance of probabilities after consideration of all the material that it was satisfied the veteran suffered “panic disorder”. Once it made that finding it then identified the relevant SoP governing panic disorder. Appropriately it considered the factors set out in the SoP that must exist before it could be said a reasonable hypothesis had been raised connecting the panic disorder with service. The relevant factor it was submitted was factor 5(a) set out earlier in this judgment namely “experiencing a severe stressor within two years immediately before the clinical onset of pain disorder”.
The respondent referred to the AAT findings and in particular in deciding the hypothesis was consistent with the template in the SoP relating to panic disorder found the following:-
a.The material pointed to clinical onset of the veteran’s panic disorder in the mid 60’s at the earliest or from 1971 at the latest.
b.There was no material pointing to the veteran experiencing a ‘severe stressor’ as defined within two years before the clinical onset of panic disorder.
c.In the event that the veteran did suffer a ‘severe stressor’ that was related to service, there was no material pointing to the severe stressor being experienced within two years before the clinical onset of panic disorder noting that the veteran was discharged in 1946.
d.The AAT did, in passing, consider factors 5(b) and (c) of SoP No 9 of 1999 but found they did not apply to the veteran.
e.The AAT found that hypothesis was not consistent with the template.
The AAT found that the other hypotheses raised by the applicant could not be reasonable hypotheses namely that :-
a.The veteran died as a result of CVA. Before the clinical onset of CVA the veteran suffered ‘ from generalised anxiety disorder’ (‘GAD’). The GAD was related to service; or
b.The veteran died as a result of CVA. Before the clinical onset of CVA the veteran suffered from ‘post traumatic stress disorder’ (‘PTSD’). The PTSD was related to service.
It was submitted that clause 5 of SoP No 52 of 1999 did not set out GAD and PTSD as factors that must as a minimum exist to connect death from CVA with the circumstances of service. In any event this was not pursued at the hearing before this Court.
Against the backdrop of those findings by the AAT it was submitted on behalf of the respondent that the reasons for the AAT may contain an error to the extent that the AAT imposed a higher onus on the applicant by failing on the balance of probabilities that he suffered “panic disorder”. Specifically in paragraph 52 of the AAT’s decision it states the following:-
“ … I am satisfied that the injury suffered by the deceased in his lifetime was "panic disorder".. On the balance of probabilities it seems to me, having regard to the evidence of Dr O'Dwyer, particularly, the observations of Mrs Smith and her son and the opinion of Dr Walton that this is the most appropriate diagnosis. …”
It was submitted on behalf of the respondent however that this error of law is not material. It was submitted that because panic disorder is part of the hypothesis and not the disease claimed by the applicant the AAT is not entitled to make a finding on the balance of probabilities as to the existence of the disease but was required to ask:-
(i)whether the material before it was sufficient to point to the existence of panic disorder, and
(ii)secondly whether it was satisfied beyond reasonable doubt that panic disorder did not exist.
In my view the respondent’s submissions in relation to the requirement of the AAT in relation to the finding of panic disorder is correct. To that extent there is at least an error of law.
It was further submitted however that implicit in the finding that the veteran suffered panic disorder on the balance of probabilities was a finding that the material before the AAT did point to the veteran suffering panic disorder. It was submitted that although imposing a higher onus on the applicant in making its finding, the fact is that it was a finding in favour of the applicant on this issue and accordingly the error of law did not affect the decision.
That concession made by the respondent was entirely appropriate and in the circumstances I accept that the error of the kind identified has been made but further accept having regard to the findings in favour of the applicant on the issue that it is not an error which has affected the decision in a way which would encourage this court to uphold the appeal.
It remains then to consider the submissions made by the respondent in relation to the questions of law and grounds set out in the appeal.
It was noted during the course of submissions that the applicant appears to take issue in relation to the second factor, that is factor 5(c) suffering from panic disorder before the clinical onset of CVA. It was noted the other two hypotheses relating to a generalised anxiety disorder and post traumatic stress disorder were not agitated and no issue was taken with the findings of the tribunal that those hypotheses were not reasonable hypotheses because they were not upheld by the Statement of Principles. It was submitted that essentially the second factor, that 5(c) required the tribunal to consider whether the veteran’s panic disorder was war caused. The tribunal identified the correct Statement of Principle and considered the relevant factors. The relevant factor was factor 5(a) experiencing a severe stressor within two years immediately before the clinical onset of panic disorder. The tribunal correctly, it was submitted, moved to the next stage to determine whether that hypothesis was reasonable. To be reasonable the hypothesis raised or pointed to by the whole of the material must be upheld by the SoP. Reference was otherwise made to McKenna’s case referred to above. Namely for the hypothesis to be upheld by the SoP would require that the sub-hypothesis in this case panic disorder was required to be upheld by its SoP. If the sub-hypothesis is not upheld then the main hypothesis could also not be satisfied according to the respondent’s submissions.
Once the tribunal had found that the deceased had suffered from panic disorder and then identified the relevant Statement of Principles it had to look at whether the hypothesis was consistent with the template. It found the clinical onset of the veteran’s panic disorder was in the mid 1960’s on the basis of the evidence of the son who in his oral evidence indicated he recalled his father having panic attacks in the mid 1960’s or at the latest in 1971. Further reliance was placed on evidence of Dr O’Dwyer who referred to a 1971 incident. The clinical notes of Dr O’Dwyer the treating doctor were available to the tribunal. It was submitted no other material either from the applicant or the deceased’s son or a friend who gave evidence before the tribunal pointed to the deceased suffering from panic attacks between 1946 and 1948. The tribunal having found there was panic disorder then had to look at the relevant Statement of Principles which it did and the material had to raise or point to each and every element in that Statement of Principles on which the applicant sought to rely.
The respondent referred to the decision of Lees v Repatriation Commission which had also been relied upon by the applicant. Reference was made specifically to paragraph 16 of that decision as follows:-
“16However this approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme. In relation to SoP1, the definition of "generalised anxiety disorder" does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is par C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. In our view, the Tribunal did not err in its approach to the meaning of the expression ‘clinical onset’”.
It was submitted after referring to Lees case that the tribunal would need to be satisfied there was material raised in response to each and every one of the elements of the diagnostic criteria and that there was insufficient material to do so. Even if one were to accept evidence from the applicant that the deceased was a worrier and other matters raised in the extract relied upon by the applicant, those matters do not point to any factors necessary to establish the diagnosis of panic disorder according to the respondent’s submissions.
The respondent submitted that the only relevant time for the tribunal to determine whether there was clinical onset of panic disorder had to be between the veteran’s discharge in July 1946 and July 1948 at the latest. It was submitted there was insufficient material to enable the tribunal or indeed any doctor who gave evidence before the tribunal to make a finding of clinical onset of panic disorder so as to satisfy the relevant Statement of Principles at that time. It was submitted that there is no error by the tribunal in its application to the standard of proof required as all it had to do was to look and determine whether there was material pointing or raising each of those elements and that is what in fact the tribunal did and found that there was not any such material. As the Statement of Principles could not be satisfied or the template could not be met by the material that was raised the hypothesis could not therefore be found to be a reasonable hypothesis.

Essentially it was submitted that what was required was not simply a finding that there was panic disorder but that there was panic disorder at the relevant time. Once the tribunal had found the Statement of Principles relating to panic disorder could not be satisfied then the hypothesis or main hypothesis which raised the issue of cerebrovascular accident being related to his panic disorder under Statement of Principle No 52 could not be satisfied.

Reasoning

Whilst I have noted that there appeared to be an error of law in relation to the higher onus placed upon the applicant by the tribunal, I am satisfied as indicated earlier in this judgment that that error did not affect the decision.
In my view submissions made by the respondent in relation to this appeal are correct.
On a proper analysis of the tribunal’s reasoning, apart from the error already identified which in any event did not alter the outcome in terms of the finding that the deceased had suffered from panic disorder I could see no error in the reasoning of the tribunal in relation to the identification of the relevant SoP and consideration of the evidence before it which ultimately led to a conclusion that the hypothesis was not consistent with the template set out in factor 5(c) of SoP No 52 of 1999.
There is no doubt that the tribunal correctly found the cause of death was CVA and this was a matter not in dispute between the parties. Equally there is no doubt that there was a relevant SoP in force for the CVA namely SoP No 52 of 1999. That SoP in clause 5 does not refer to anxiety disorder as a factor connecting death from CVA with the circumstances of death. It was otherwise open to the tribunal having found there was panic disorder to then conclude that the panic disorder did not occur at the relevant time. Whilst clearly there was evidence of stressors during the service by the deceased, it is clear that without the material pointing to each and every aspect of the diagnosis of panic disorder the hypothesis could not be reasonable. I accept that once the tribunal finds that the Statement of Principles relating to panic disorder could not be satisfied then it is clear that the main hypothesis raised in relation to the CVA being related to panic disorder under the relevant Statement of Principles cannot be satisfied. In my view there is no error in the tribunal’s reasoning and in particular I am satisfied that it has appropriately applied the principles in McKenna’s case.
It is not otherwise suggested in this application that the tribunal has failed to apply or properly consider the principles identified in Deleido’s case and nor indeed is it evident to me on a proper reading of the tribunal’s reasons that there has been any other error of law identified.
The findings of fact by the tribunal were findings which in my view were reasonably open to it to make in the circumstances having regard to the relevant law.
It follows therefore that the application should be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 10 June 2004