FEDERAL COURT OF AUSTRALIA

Woodward v Repatriation Commission [2003] FCAFC 160

VETERANS’ ENTITLEMENTS – Entitlement to pension – widow – veteran’s death from asthma and other respiratory conditions – veteran sustained respiratory infection during operational service in World War II – respiratory infection led to asthma – whether death of veteran war-caused within meaning of s 8(1)(a) of the Veterans’ Entitlements Act 1986 (Cth) – relationship between ss 8, 13, 120, 120A and 196B – whether Statement of Principles (“SoP”) for Asthma applicable to claim – whether observations of Full Court in Keeley v Repatriation Commission (2000) 98 FCR 108 obiter dicta – whether observations in Keeley correct – whether temporal connection between “occurrence” and operational service sufficient without meeting requirements of SoP

VETERANS’ ENTITLEMENTS – Entitlement to pension – claim by veteran for pension at Special Rate – veteran suffering from post-traumatic stress disorder (“PTSD”) and alcohol dependence or alcohol abuse sustained during operational service in Vietnam – whether diseases war-caused within meaning of s 9(1)(a) of the Veterans’ Entitlements Act 1986 (Cth) – relationship between ss 9, 13, 120, 120A and 196B – whether SoP for PTSD and SoP for Alcohol Dependence or Alcohol Abuse applicable to claim – whether observations of Full Court in Keeley v Repatriation Commission (2000) 98 FCR 108 obiter dicta – whether observations in Keeley correct – whether temporal connection between “occurrence” and operational service sufficient without meeting requirements of SoPs – alternative submission – whether Administrative Appeals Tribunal erred in law in construing definition of “experiencing a severe stressor” in both SoPs too narrowly – whether material pointed to hypothesis that veteran “experienced” or was “confronted with” actual death or serious injury or threat thereof – whether Tribunal’s decision affected by error

WORDS AND PHRASES – “experiencing a severe stressor” – “experienced” – “confronted with”

Veterans’ Entitlements Act 1986 (Cth) ss 8(1)(a), 9(1)(a), 13, 120(1), 120(3), 120A and 196B(2)

Repatriation Commission v Keeley (2000) 98 FCR 108 not followed

Repatriation Commission v Deledio (1998) 83 FCR 82 followed

Deledio v Repatriation Commission (1997) 47 ALD 261 referred to

McKenna v Repatriation Commission (1999) 86 FCR 144 referred to

Repatriation Commission v Law (1980) 31 ALR 140 considered

Re Jenkin and Repatriation Commission (1997) 47 ALD 721 considered

Repatriation Commission v Hill (2002) 69 ALD 581 considered

Repatriation Commission v Hancock [2003] FCA 711 referred to

Byrnes v Repatriation Commission (1993) 177 CLR 564 referred to

Re Slattery and Repatriation Commission (1998) 52 ALD 90 not followed

Bushell v Repatriation Commission (1992) 175 CLR 408 referred to

O’Neil v Repatriation Commission (2001) 34 AAR 290 referred to

Stoddart v Repatriation Commission (2003) 197 ALR 283 considered

ROBERT CHARLES WOODWARD v REPATRIATION COMMISSION

V531 of 2002

MAVIS GUNDRY v REPATRIATION COMMISSION

V532 of 2002

BLACK CJ, WEINBERG & SELWAY JJ

30 JULY 2003

MELBOURNE

On appeal from the Veterans’ Appeals

Division of the Administrative Appeals Tribunal

THE COURT ORDERS THAT:

1.             The decision of the Administrative Appeals Tribunal made on 25 July 2002 be set aside.

2.             The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

3.             The parties file and serve submissions relating to costs within seven days of the date of making of these orders.

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

On appeal from the Veterans’ Appeals

Division of the Administrative Appeals Tribunal

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The parties file and serve submissions relating to costs within seven days of the date of making of these orders.

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

On appeal from the Veterans’ Appeals

Division of the Administrative Appeals Tribunal

REASONS FOR JUDGMENT

THE COURT

1                     These two appeals, each brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), were heard together. They are unrelated factually but they raise a common question of law, namely whether certain observations in the joint judgment of Lee and Cooper JJ in the decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108 (“Keeley”) were part of the ratio of that case, and also whether those observations were correct.

2                     In addition, Mr Woodward’s appeal raises a number of discrete issues. These concern the meaning to be accorded to a particular expression contained in two separate Statements of Principles (“SoPs”), the first concerning Post Traumatic Stress Disorder (“PTSD”), and the second concerning Alcohol Dependence or Alcohol Abuse.

3                     Although described as “appeals”, and heard before a Full Court, the proceedings are, of course, dealt with in the original jurisdiction of the Court. They were referred to a Full Court by the Chief Justice, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), because they raise for consideration the correctness, or otherwise, of the observations in the joint judgment to which we have referred.

4                     It is necessary to set out, in summary form, the factual background to each application. As there is only one legal issue raised on behalf of Mrs Gundry, it is convenient to deal with her case first.

Factual Background – Mrs Gundry

5                     Mrs Gundry brings this appeal as the widow of the late Ernest Gundry. He was born on 27 February 1921 and died on 20 September 1997. He served in the Australian Army from 14 December 1941 to 17 May 1946, including a period in New Guinea. There is no dispute about his having rendered “operational service” within the meaning of that expression in the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

6                     Mr Gundry told his wife that he had suffered pneumonia during his war service, and that he had been hospitalised as a result. His service records showed 18 days’ sick leave in October 1941 and 12 days’ hospitalisation with “bronchitis and asthma” in February 1943.

7                     Mr Gundry’s cause of death was certified to be:

“respiratory failure – 2 days; emphysema – 10 years; asthma – 60 years; cardiac failure – 1 year”.

8                     After the death of her husband, Mrs Gundry applied to the Repatriation Commission (“the Commission”) for a war widow’s pension. In December 1997, the Commission refused her application on the ground that her husband’s death was not “war-caused”. Mrs Gundry sought review of that decision.

9                     On 23 May 2000, the Veterans’ Review Board affirmed the decision of the Commission. Mrs Gundry then applied to the Administrative Appeals Tribunal (“the AAT”) for a review of that decision.

10                  The evidence before the AAT included a number of medical reports prepared by Dr David Hart, a consultant respiratory physician. In the first of those reports, dated 11 December 2000, Dr Hart wrote that he believed it to be a reasonable hypothesis that Mr Gundry first developed asthma as a result of a respiratory infection that he contracted in 1941. He went on to say that he believed that chronic asthma led to the subsequent development of severe pulmonary emphysema. It was that condition which led ultimately to his death in 1997.

11                  In a subsequent report, dated 29 May 2001, Dr Hart concluded that Mr Gundry’s symptoms met the definition of “chronic bronchitis” in Instrument No 73 of 1997 (that being the SoP for chronic bronchitis). However, he maintained his earlier stance that Mr Gundry suffered from “chronic asthma”, and that there was a long standing respiratory condition of “bronchial asthma”.

12                  In 2001 the Repatriation Medical Authority, a body established pursuant to s 196A of the Act, determined a new SoP (Instrument No 85) dealing with asthma. It did so pursuant to s 196B(2). On 7 February 2002, in response to that SoP, Dr Hart was asked to prepare another report indicating whether Mr Gundry met the definition of asthma, as contained in the new SoP. He concluded in that report that Mr Gundry did meet that definition.

13                  On 26 July 2002, the AAT affirmed the Board’s decision that Mr Gundry’s death was not relevantly war-caused. On 15 August 2002, Mrs Gundry lodged an appeal to this Court against that decision.

Factual Background – Mr Woodward

14                  Mr Woodward was born on 20 January 1948. He enlisted in the Australian Army and engaged in operational service in Vietnam between 11 June 1969 and 14 May 1970. His duties were principally as a clerk, but he described having been exposed to several stressful events. In summary he claimed:

·                    Shortly after he arrived in Vietnam he was sent on patrol. His task was to search for Viet Cong who were thought to be in the vicinity. It had been raining, and he recalled the sound of water dripping from trees. He associated that sound with the presence of enemy forces. Later that night, he was suddenly awoken by a sharp piercing noise which was, in fact, the sound of a branch falling. A member of the patrol, in fear of being attacked, had responded by “swinging a machine gun over his head”. He said that this incident left him terrified, and he recalled feeling a “knot” in his stomach;

·                    On another occasion there was an “alert” at an airstrip located close by. He was again sent on patrol to repel what was believed to be an attack by the Viet Cong. He became separated from the patrol, and he recalled feeling “helpless, isolated and afraid”. As it happened, no Viet Cong were located. Nevertheless, while separated from the patrol, he feared that he might be shot. That fear was accentuated by the fact that some of the members of his unit had, he said, been drinking heavily earlier that day;

·                    On a third occasion he was sent on patrol with another soldier. The two of them had become lost. Eventually, they found their way back to base. That evening he stood guard in an area that was covered by tall grass. He recalled the night having been so dark that he could not see his hand in front of his face;

·                    On another occasion he was ordered to go on helicopter patrol. The helicopter was piloted by two officers, a Captain Donald and a Second Lieutenant Jellie. His task was to release a flare whenever he spotted a suspected Viet Cong tunnel or bunker. The purpose was to light up the scene so that bomber aircraft could follow and destroy the target. He recalled that although he was strapped into his seat, there were no sides to the helicopter. It flew close to the ground about level with the tree tops. He said that he felt terrified and helpless, and recalled that the helicopter had narrowly avoided colliding with a tree;

·                    On a subsequent occasion he was suddenly roused from sleep, and told that the helicopter flown by Captain Donald and Second Lieutenant Jellie had been shot down. Tragically, both men had died. He was ordered to process various forms relating to their deaths. He was further ordered to clean out Captain Donald’s tent, and to pack his possessions. While in the course of doing so, he saw a photograph of a woman, and a young girl. He believed them to be Captain Donald’s wife and daughter.

15                  In its description of the applicant’s claim to have been exposed to stressful events, the AAT referred to Mr Woodward’s recollection of the firing of heavy artillery shortly after his arrival at Nui Dat, which heightened his sense of insecurity. It also referred to the installation of claymore mines by Mr Woodward.

16                  There was no dispute about the fact that Mr Woodward sustained a number of injuries which were war-caused and which ultimately gave rise to an entitlement under the Act. It was also common ground that he had begun to drink heavily while serving in Vietnam and that he had continued to drink heavily after he returned to Australia.

17                  Among the injuries that he sustained in Vietnam were bilateral sensori neural hearing loss, solar skin damage, non-insulin dependent diabetes, low back strain and right phrenic nerve palsy. Although he was able to hold a number of jobs after his period of service had ended, his condition progressively deteriorated. Finally, he could no longer carry out even basic tasks, including driving a vehicle. By December 1999, he was suffering from what he described as “phobic” attacks, during which he would break down and cry in the course of his employment.

18                  Mr Woodward eventually made a claim for a pension under the Act. That claim was accepted, but only in part. A pension was granted relating to the injuries which he sustained in Vietnam, but at a resultant calculation of impairment of 60%. On 5 September 1999, in accordance with that level of impairment, the Commission assessed his pension at 90% of the General Rate. However, other aspects of his claim were rejected. These included PTSD, and alcohol dependence or alcohol abuse, both of which he claimed were war-caused.

19                  On 29 October 1999, the Commission concluded that the diagnosis of PTSD could not be confirmed. It also concluded that Mr Woodward’s alcohol dependence or abuse was not war-caused.

20                  On the same day, Mr Woodward applied to the Veterans’ Review Board for a review of the Commission’s decision. On 11 July 2001, the Board varied the Commission’s finding regarding PTSD and accepted that the diagnosis of that condition was confirmed. It amended that diagnosis to include “depressive disorder”. Nonetheless, the Board found that neither PTSD, nor alcohol dependence, were war-caused. It therefore affirmed the Commission’s decision to deny compensation regarding these conditions.

21                  It should be noted that, for reasons not presently relevant, the Board increased Mr Woodward’s pension to 100% of the General Rate. That decision took effect from 8 February 2000.

22                  Mr Woodward applied to the AAT for review of the Board’s decision. In substance, he claimed to be entitled to pension at the Special Rate, an amount significantly greater than that payable as 100% of the General Rate.

23                  It was common ground before the AAT that, in the event that it concluded that the PTSD was war-caused, Mr Woodward’s minimum impairment rating would be increased to 70%, which would be sufficient to entitle him to pension at the Special Rate.

24                  On 25 July 2002, the AAT decided that the Board’s decision should be varied, insofar as it concerned diagnosis. It concluded that Mr Woodward suffered from PTSD and also from alcohol dependence or alcohol abuse. However, it found that neither condition was war-caused within the meaning of the Act. Its reasons for arriving at that conclusion will be summarised later in this judgment.

25                  On 15 August 2002, Mr Woodward lodged an appeal to this Court against that decision.

Legislative context

26                  It is important to understand the legislative history of the Act, and the nature of the amendments made to it, particularly those made in 1994 when s 120A was introduced.

27                  Section 13(1) of the Act provides that the Commonwealth is liable to pay a pension to a veteran where the death of that veteran was war-caused, or where the veteran has become incapacitated from a war-caused injury, or war-caused disease.

28                  Section 8 sets out the circumstances in which the death of a veteran is taken to have been war-caused. Relevantly, s 8(1)(a) provides as follows:

“(8)(1) … the death of a veteran shall be taken to have been war-caused if:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…”

29                  Section 9 sets out the circumstances in which an injury or disease is taken to have been war-caused. Relevantly, s 9(1)(a) provides as follows:

“(9)(1) … an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …”

30                  Section 120 makes provision for the standard of proof to be applied by the Commission and, on review, by the Board and the AAT. Relevantly, ss 120(1) and (3) provide:

“(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This sub-section is affected by section 120A.

…

(3) In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)          that the injury was a war-caused injury or a defence-caused injury;

(b)          that the disease was a war-caused disease or a defence-caused disease; or

(c)          that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This sub-section is affected by section 120A.”

31                  Because both Mrs Gundry’s and Mr Woodward’s claims were lodged after 1 June 1994, the new regime regarding SoPs, introduced in that year, applies to those claims. Section 120A(1) relevantly provides:

“This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;…”

A note appended to this subsection provides that subs 120(1), (2) and (3) are relevant to these claims.

32                  Section 120A(3) relevantly provides

“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) …

that upholds the hypothesis.”

33                  The SoPs are statutory instruments as they are expressly identified as disallowable instruments for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). Where an SoP is determined under s 196B(2), it sets out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised: see the judgment of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 96 (“Repatriation Commission v Deledio”), which endorsed the observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 (“Deledio v Repatriation Commission”). That is, the hypothesis raised by the material will only be reasonable if it is consistent with, or fits the template of, the SoP.

34                  The relationship between ss 120(1), 120(3) and 120A(3) was explained in Repatriation Commission v Deledio. The Full Court summarised what each of these sections required of a decision maker, and concluded that a four stage process should be followed. We will return to that process later in this judgment.

35                  The SoP applied by the AAT in relation to Mrs Gundry’s claim was the SoP for Asthma introduced by Instrument No 85 of 2001. That SoP replaced an earlier version, the SoP introduced by Instrument No 59 of 1996. Nothing of consequence turns upon any distinction between the two. Indeed, it is unnecessary to set out the factors contained within either SoP as the question of law raised on behalf of Mrs Gundry in this appeal does not require them to be considered.

36                  Mr Woodward’s appeal is different. One of the grounds raised requires consideration to be given to the factors set out in the SoPs applicable to his claim. There were two such SoPs. The first was the SoP for PTSD, introduced by Instrument No 3 of 1999 and amended by Instrument No 54 of 1999. The second was the SoP for Alcohol Dependence or Alcohol Abuse, introduced by Instrument No 76 of 1998.

37                  According to cl 5 of the SoP for PTSD:

“The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting [PTSD] … with the circumstances of a person’s relevant service are:

(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or

(b)               experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

(c)                inability to obtain appropriate clinical management for post traumatic stress disorder.”

38                  Clause 5(b) of the SoP for Alcohol Dependence or Alcohol Abuse is in similar terms.

39                  The term “experiencing a severe stressor” is defined in cl 8 of the SoP for PTSD. Clause 8 of the SoP defines that expression in the following terms:

“‘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, 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 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.”

40                  The definition of “experiencing a severe stressor” in cl 8 of the SoP for Alcohol Dependence or Alcohol Abuse is in essentially the same terms, although it contains the qualification that the event or events might evoke intense “fear, helplessness or horror”.

41                  It should be noted that the term “post traumatic stress disorder” is defined in cl 2(b) of the SoP for PTSD as meaning a psychiatric condition meeting a particular description derived from DSM-IV which, in turn, is defined in cl 8 as meaning “the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders”.

The AAT’s decision – Mrs Gundry

42                  Mrs Gundry submitted before the AAT that her claim should be determined without any reference whatsoever to the SoP for Asthma. She contended that given that her application was made pursuant to s 8(1)(a) of the Act, there was no need for her to establish that her husband’s death fell within the template contained therein. She submitted that this approach to the interpretation of s 8(1)(a) was in accordance with the principles stated in the joint judgment of Lee and Cooper JJ in Keeley at 115-116.

43                  The AAT rejected Mrs Gundry’s submission. It did so for the same reasons that it rejected a like submission advanced on behalf of Mr Woodward. We shall deal with the reasons given for that rejection shortly. It is sufficient for present purposes to note that, although the AAT considered other possible diagnoses, it found “asthma” to be, on the “balance of probabilities”, the cause of Mr Gundry’s death. However, it concluded that the hypothesis raised on behalf of Mrs Gundry did not meet the factors contained in the “template” of the SoP. It found, therefore, that the hypothesis could not be regarded as being “reasonable” and rejected the application for review.

The AAT’s decision – Mr Woodward

44                  Mr Woodward advanced essentially the same submission in relation to the construction of s 9(1)(a) as did Mrs Gundry in relation to s 8(1)(a). He contended that his claim should be determined without reference to either the SoP for PTSD, or the SoP for Alcohol Dependence or Alcohol Abuse. He submitted that given that his application was made pursuant to s 9(1)(a) of the Act, there was no need to establish that his PTSD, or his alcohol dependence or alcohol abuse, fell within the templates contained in those SoPs.

45                  He submitted that this approach to the interpretation of s 9(1)(a) was in accordance with the principles stated in the joint judgment of Lee and Cooper JJ in Keeley.

46                  Their Honours said at 115:

“It is to be noted that in respect of a veteran who rendered ‘operational service’, s 8(1)(a) contemplates that the link between the death of the veteran and the war service rendered may be no more than temporal. Where s 8(1)(a) refers to ‘an occurrence that happened while the veteran was rendering operational service’, it is not necessary that the occurrence arose out of, or was attributable to, the ‘operational service’. That is, the connection between the event, or events, and the ‘operational service’ may be coincidental and not causal. Furthermore, the occurrence may be an event with a direct consequence, such as the suffering of injury or contraction of a disease, or it may be an event, or series of events, with a latent or delayed consequence in which the effect of an injury, or onset of a disease, is not manifested until some later date. Irrespective of when the consequence is manifested, the event, or series of events, would be an occurrence that happened while the veteran was rendering ‘operational service’.”

47                  Their Honours continued at 116:

“It may be seen, therefore, that Statements of Principles determined by the Authority under s 196B of the Act may have relevance to part only of the circumstances to which s 8 may apply. The Act has introduced Statements of Principles to restrict the field of ‘medical-scientific’ discourse able to support a hypothesis that relies upon ‘medical-scientific’ opinion. The Act does so by providing that a hypothesis is not reasonable for the purpose of s 120(3) unless a Statement of Principles ‘upholds’ the hypothesis. Whatever meaning is to be attributed to the word ‘upholds’, that provision will not apply to a hypothesis relevant to s 8 that is not addressed by a Statement of Principles, for example, a hypothesis not involving ‘medical-scientific’ opinion. For example, it is unlikely that any Statement of Principles determined in respect of death resulting from the disease dipsomania, would include a death resulting from that disease described by the facts in Carroll”.

48                  Mr Woodward submitted that the “occurrence” to which s 9(1)(a) referred was his having contracted the diseases in respect of which he claimed entitlement. He contended that no medical or scientific opinion was required in order to establish that he had contracted those diseases while on operational service. Accordingly, his claim should be dealt with pursuant to s 120(1) and 120(3), without recourse to s 120A or any SoP. The fact that the diseases which he had contracted did not meet the requirements of the template for either SoP was, therefore, irrelevant.

49                  The AAT rejected this submission. It concluded that the passages set out above from Keeley were dicta, and that they did not correctly state the law.It preferred instead to follow an earlier decision of the AAT, constituted by Mathews J, and two members, which it regarded as being contrary to Keeley: see Re Jenkin and Repatriation Commission (1997) 47 ALD 721 (“Re Jenkin”).

50                  The AAT also considered that some of the observations in Keeley were difficult to reconcile with an earlier decision of the Full Court in McKenna v Repatriation Commission (1999) 86 FCR 144 (“McKenna”).

51                  The AAT accepted that Mr Woodward was suffering from mild to moderate PTSD, and also from alcohol dependence or alcohol abuse. It did so on the basis of the medical evidence before it. It accepted that he had engaged in service which he found to be very stressful and frightening. However, it was not satisfied that “a reasonable hypothesis ha[d] been raised connecting either PTSD or psycho active substance abuse or dependence with service” (at [58]). Its reason for arriving at that conclusion was that Mr Woodward did not meet the requirements of either template.

52                  The AAT accepted that the question whether a person suffers from a particular condition (the question of diagnosis) is not affected by an SoP, even if that SoP contains a definition of that condition. That conclusion was in accordance with accepted authority: see Deledio v Repatriation Commission at 275 per Heerey J:

“…[I]t is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis … the SoP is a subset of proved (Bushell at CLR 414) or known (Byrnes at CLR 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.”

53                  The Full Court in Repatriation Commission v Deledio, at 96-97, expressly agreed with that observation.

54                  The AAT then set out the four stages of analysis which were prescribed in Repatriation Commission v Deledio to determine whether an SoP is satisfied. The Full Court said at 97-98:

“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the 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. … 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.”

55                  It should be noted that the observation made in the second paragraph that if no SoP is in force the application must fail, needs to be qualified by reference to s 120A(4), which provides that s 120A(3) does not apply in certain circumstances. As was discussed by Selway J in Repatriation Commission v Hancock [2003] FCA 711 at [10], the application then falls to be determined under s 120(1) and (3) of the Act, and in accordance with the process in Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571).

56                  The AAT found, in relation to Mr Woodward’s claim that he was suffering from an injury for which there was an SoP in force and that the first two steps were satisfied. In other words, it found:

·               in accordance with step one, that the material pointed to a hypothesis connecting his PTSD, and alcohol dependence or alcohol abuse, with the circumstances of the particular service which he had rendered; and

·               in accordance with step two, that there were in force two SoPs determined by the Authority under s 196B(2).

57                  However, when it came to step three, which required the AAT to form the opinion whether the hypothesis raised was reasonable, it concluded that it did not fit the “template” to be found in either of the relevant SoPs. That was because the hypothesis did not contain one or more of the factors which the Authority had determined to be the minimum that must exist, and to be related to the person’s service. As the hypothesis failed to fit within either of the relevant templates, it was deemed not to be “reasonable”. It was not necessary, therefore, for the AAT to proceed to consider whether, under s 120(1), it was satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury or disease. Mr Woodward’s claim had to fail.

58                  The reason given by the AAT for concluding that the hypothesis did not fit either relevant template was its finding that Mr Woodward had not met the definition of “experiencing a severe stressor” as set out in cl 8 of both SoPs. In arriving at that conclusion, the AAT accepted as correct the meaning accorded to the words “experienced”, “witnessed” and “confronted” by an earlier decision of the AAT in Re Slattery and Repatriation Commission (1998) 52 ALD 90 (“Re Slattery”). In that case, the AAT said at 108:

“The word ‘witnessed’ suggests that the person was present at the event involving real or present (ie actual) or threatened death. The word ‘experienced’ suggests that the person observed or encountered such an event and the word ‘confronted’ that he or she was faced with such an event.”

59                  To limit the definition of the word “experienced” in this way was plainly at odds with its ordinary and natural meaning. So much was eventually acknowledged by the respondent in the appeal to this Court.

60                  However, immediately after adopting the test laid down in Re Slattery, and plainly applying the definition of the various terms set out therein, the AAT said at [67] of its reasons:

“I can find nothing from the material the applicant raised which would satisfy the definition of ‘experiencing a severe stressor’. Whilst the applicant was in fear and had a sense of helplessness and horror and resorted to alcohol for comfort, there was no material raised or pointing to [sic] of the applicant experiencing, witnessing or being confronted with an event or events involving actual or threatened death or serious injury or threat to him or others.” (Emphasis added.)

61                  The passage set out above was the entire extent of the AAT’s reasoning in relation to Mr Woodward’s failure to satisfy the requirements of the relevant SoPs. The AAT did not explain why the material failed to raise or point to his having experienced, or been confronted with, an event or events of the type in question.

The parties’ submissions in the appeals to this Court

62                  As noted above, there was a single question of law common to both appeals. It was submitted that both Mr Gundry’s death and Mr Woodward’s various diseases were war-caused because they had “resulted from an occurrence that happened while the veteran was rendering operational service”. It followed, according to counsel for both applicants, that their appeals fell to be considered under ss 8(1)(a) and 9(1)(a) respectively. This meant that s 120A had no application, and that the AAT had erred in having regard to any of the SoPs that might otherwise have been considered relevant to their cases.

63                  The applicants also contended that even if their primary submission were to be rejected, the new regime of SoPs introduced in 1994 had no application to cases which did not involve recourse to what they described as “medical-scientific” opinion. If a claim could be determined without reference to expert knowledge of that type, the fact that the applicant did not meet the requirements of the template in an SoP relating to the condition which caused his death, or incapacity, was of no relevance.

64                  As before the AAT, these two variants of that submission were each based entirely upon the observations of Lee and Cooper JJ in Keeley which we have set out at [45] and [46] above. It was submitted that the AAT had erred by regarding the statements of law contained in these passages merely as dicta. It was contended that they were in fact ratio and that this Court should follow Keeley unless persuaded that the decision was clearly erroneous: see Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560-561; Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at 602 and Repatriation Commission v Gorton (2001) 110 FCR 321 at 327-331 (a case which, ironically, dealt with the question whether another aspect of the reasoning in Keeley, different from that presently under consideration, should be followed by a later Full Court).

65                  The respondent, on the other hand, submitted that the passages in Keeley upon which the applicants relied were clearly dicta. However, if contrary to that submission, those passages were found to be part of the ratio of that case, it was submitted that they were clearly erroneous, and should not be followed.

66                  In support of its contention that the observations in Keeley were dicta, the respondent submitted that the only issue which had to be determined in that case was which of two SoPs, each dealing with multiple myeloma, was applicable to the facts of that case. There was no issue regarding the construction of s 8(1)(a), or whether a claim brought under that paragraph operated to exclude s 120A. Indeed, we were informed by Mr Hanks QC, counsel for the respondent who, as it happened, had also appeared as counsel for the Repatriation Commission in Keeley,that the issues addressed in the passages from the joint judgment upon which both Mrs Gundry and Mr Woodward relied had not been raised in argument at all in that case. It was submitted that whilst it was clear that the authors of the joint judgment had sought to provide a helpful summary of the way in which the legislative scheme operated as a whole. They had done so without the benefit of any submission directed to the proper interpretation of s 8(1)(a) and had misconstrued that provision.

67                  In support of the respondent’s contention that the observations in Keeley were clearly erroneous, it was submitted that the question whether a death or disease is war-caused, in relation to a claim brought under either ss 8 or 9, must be determined by applying the standard of proof set out in ss 120(1) and 120(3). It was further submitted that the Act did not allow for any other standard of proof. At least this last proposition was common ground between the parties.

68                  However, the respondent submitted that a claim brought under ss 8 or 9 led, via ss 120(1) and 120(3), intractably to s 120A. It did not matter, in that regard, that ss 8(1)(a) and 9(1)(a) were the only paragraphs contained within those sub-sections which were invoked. The respondent submitted that, contrary to what was said in Keeley, neither ss 8(1)(a) nor 9(1)(a) contemplated that the link between the death of the veteran, or any disease contracted by the veteran, and the war service rendered might be no more than temporal. Where ss 8(1)(a) and 9(1)(a) referred to “an occurrence that happened while the veteran was rendering operational service”, it was incorrect to say, as had been said in Keeley, that it was not necessary that there be a causal link between the event or events and the operational service. The existence of a temporal link was necessary, but not sufficient. There had to be a causal link as well. It was submitted, so much was clear from the use of the expression “resulted from” in each of ss 8(1)(a) and 9(1)(a).

69                  In substance, the respondent’s submission was that, after the introduction in 1994 of s 120A, virtually no claim could succeed unless it met the requirements contained in any SoP which had been determined, and which was relevant.

70                  It was further submitted that the suggestion in Keeley that SoPs “may have relevance to part only of the circumstances to which s 8 may apply” was erroneous. It will be recalled that Lee and Cooper JJ observed that the Act had introduced SoPs “to restrict the field of ‘medical-scientific’ discourse able to support a hypothesis that relies upon ‘medical-scientific’ opinion” (at 116). The Act did so by “providing that a hypothesis is not reasonable for the purpose of s 120(3) unless [an SoP] ‘upholds’ that hypothesis”. Whatever meaning was to be attributed to the word “upholds”, the provision would “not apply to a hypothesis relevant to s 8 that is not addressed to” an SoP, for example a hypothesis not involving “medical-scientific” opinion (at 116).

71                  It was submitted that the distinction apparently drawn by their Honours between those claims that could be supported without recourse to “medical-scientific” opinion, and those claims that were dependant upon such opinion, was spurious. That distinction was said to lack any textual foundation within the Act. In other words, it was submitted that where an SoP had been determined, it applied to any claim brought under ss 8(1) or 9(1), save for s 8(1)(f) which was a special case. It made no difference whether the claim was brought under par (a) of those sub-sections, or some other paragraph contained within them.

72                  As noted earlier, in addition to the common question of law, Mr Woodward’s appeal raised entirely separate questions arising out of the construction of the SoPs relevant to his claim. In his grounds of appeal and written submissions he contended that the AAT had erred in finding that the requirements of the SoPs for PTSD and Alcohol Dependence or Alcohol Abuse were not met. In substance, he contended that the AAT:

·               failed properly to apply ss 120(1), 120(3) and 120A(3);

·               erred by considering the diagnostic criteria for PTSD in the relevant SoP;

·               erred in applying an “objective test” when applying the relevant SoPs; and

·               failed properly to consider the evidence relating to various occurrences on operational service.

73                  These arguments were developed at some length but, for reasons which will shortly become apparent, it is unnecessary, in this proceeding, to address them specifically. That is because, included among the numerous questions of law said to be raised on the appeal, was the following:

“(k) whether the Tribunal properly interpreted and applied the terms ‘experienced’, ‘witnessed’ and ‘confronted with’ in the relevant SoPs…”

74                  That question of law was supported by grounds of appeal which, though drafted in imprecise terms, sufficiently encompassed the issues raised in the question as formulated. Neither the question of law, nor the particular grounds of appeal, which related to that question, were addressed in written submissions filed on behalf of Mr Woodward prior to the hearing of this proceeding. However, they were the subject of extensive oral argument, and later written submissions, filed by both parties.

75                  In substance, it was submitted by Mr Woodward that the AAT had adopted too narrow an approach to the interpretation of the words “experienced” and “confronted with” in the definition of “experiencing a severe stressor”. It was submitted that the AAT had been required to assess the material upon which he relied for the limited purpose only of determining whether it “raised” or “pointed to” the elements of the hypothesis. That was said to be a low threshold, easily satisfied.

76                  It was submitted that in carrying out its task the AAT had treated the word “experienced” as being limited to “observing” or “encountering” an event of the relevant kind. It was further submitted that in adopting that approach the AAT had erred in law. It had applied too narrow an interpretation of this term. In ordinary parlance a person could experience “death” or “serious injury”, or a threat thereof, without literally observing or encountering these phenomena. Similarly, it was submitted that a person could be “confronted with” such an event without coming “face to face” with it, at least in the sense in which the AAT had used that term.

77                  Mr Woodward further submitted that it was the experience of the veteran which was of paramount concern and not whether the stressors were “objectively” of such a nature as might actually have caused such an experience. It was accepted that for the purpose of the relevant SoPs the “experience” had to be based on an “event”. It was also accepted that a figment of the imagination, such as might arise through “paranoid ideation”, would not be sufficient to meet this requirement. However, there was no suggestion of any such delusion on the part of Mr Woodward. It was submitted that it was his “experience” which had to be the focus of the AAT’s deliberations, a point which it appeared not to have appreciated.

78                  In response to these submissions, the respondent acknowledged, in written submissions filed after the hearing of this application, that the AAT’s analysis of the terms “experienced” and “confronted with”, taken from Re Slattery “may be thought too narrow”. However, the respondent submitted that, in the present case, the AAT had not based its conclusion (that the material before it did not point to a hypothesis of the kind required by the relevant SoPs) on any finding that Mr Woodward had not “experienced”, “witnessed” or been “confronted with” an event or events. Rather, it was submitted, the AAT’s conclusion was that the events identified in Mr Woodward’s evidence were not events that “involved actual or threatened death or serious injury to himself or others”. In other words, any error of law on the AAT’s part had not affected the ultimate outcome of the proceeding.

Conclusions regarding the common question of law

79                  In our opinion, the respondent’s submissions regarding the common question of law should be accepted. We consider that the AAT correctly held that the passages in the joint judgment of Lee and Cooper JJ in Keeley, upon which each applicant relied, were dicta, and not ratio. Notwithstanding that fact, they are entitled to be accorded great respect as the considered views of two members of the Full Court in a joint judgment. We would not lightly depart from them but, after careful consideration, we have concluded that these passages contain erroneous statements of law, and should not be followed.

80                  To briefly reiterate what was said earlier, each applicant submitted that where a claim is brought under either s 8(1)(a) (in the case of death) or s 9(1)(a) (in the case of injury or disease) the claimant need only point to a temporal, and not a causal, relationship with operational service. Accordingly, so it was submitted, any such claim must be determined without reference to s 120A(3), or any SoP which might be in force.

81                  There was also a variant of this submission. That too was based upon the observations in Keeley. It was submitted that any claim brought under either ss 8(1)(a) or 9(1)(a) which did not require recourse to “medical-scientific” opinion must be determined without reference to s 120A(3), or any SoP which might be in force. It was submitted that both Mrs Gundry and Mr Woodward had brought such claims.

82                  We are unable to accept either variant of this submission. Turning to the first variant, ss 8(1)(a) and 9(1)(a) provide that a veteran’s “death”, or “injury or disease”, will be taken to be war-caused where it results from an “occurrence that happened while the veteran was rendering operational service”. The observation in Keeley that a provision in those terms contemplates a link with service that may be no more than temporal, and that the connection with service, “may be coincidental and not causal” cannot, in our view, be reconciled with the language of these provisions.

83                  Sections 8(1)(a) and 9(1)(a) plainly require first, an “occurrence” that happened during operational service. That is, there must be a temporal relationship between the event (which constitutes the occurrence) and the service in question. At that level, the service need not cause, or contribute to, the event. However, the claimed “death” in the case of s 8(1)(a), or “injury or disease” in the case of s 9(1)(a), must result from that event or events. The words “result from” are words of causation. They require that there be a causal link between the veteran’s service, on the one hand, and the “death”, or “injury or disease”, that “happened during operational service”, on the other.

84                  This conclusion finds support in Repatriation Commission v Law (1980) 31 ALR 140 in which a Full Court constituted by Bowen CJ, Brennan and Lockhart JJ set out the principles which governed the legislative precursor to s 8(1)(a). They noted that s 101(1)(a) of the Repatriation Act 1920 (Cth) conferred entitlement to a pension upon the death of any member of the forces who was employed on active service and whose death had “resulted from any occurrence” that happened during his period of service. They said at 149:

“An entitlement is not conferred by para (a) unless there has been an ‘occurrence’, there is a relationship between that occurrence and the death (a relationship expressed by the phrase ‘resulted from’), and there is a temporal coincidence of the occurrence with the period of service.” (Emphasis added.)

See also Calman v Commissioner of Police (1999) 167 ALR 91 at 101.

85                  As with all claims under ss 8 and 9, a claim that “death”, or “injury or disease”, is war-caused (where that claim relates to operational service) is to be determined by applying the standard of proof set out in s 120(1). With the singular exception of s 8(1)(f), we can see no basis for any distinction between a claim brought under par (a) of ss 8(1) or 9(1), and a claim brought under some other paragraph within either of those sub-sections.

86                  Once s 120(1) operates, as it does when either ss 8(1)(a) or 9(1)(a) is invoked, s 120(3) is necessarily brought into play. That sub-section provides that the highly beneficial standard of proof set out in s 120(1) is inapplicable in support of a veteran’s claim unless the decision-maker is of the opinion that the material before it raises a reasonable hypothesis connecting the injury, disease or death, with the circumstances of the veteran’s service: Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 and Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.

87                  Once s 120(3) operates, the process of determining the claim is drawn inexorably into the sphere of s 120A. The notes to ss 120(1), 120(3), and 120A(1) make this clear. The notes to ss 120(1) and 120(3) state that the provisions to which they are appended are “affected” by s 120A. Similarly, note “1” to s 120A(1) is linked, albeit in different terms, to ss 120(1) and 120(3). Section 5U(b) provides that a note is part of any sub-section by which it is immediately preceded. It follows that if there is an SoP in force which is relevant to the claim, the requirements of that SoP must be met.

88                  The applicants submitted that there is no need to demonstrate a reasonable hypothesis in circumstances where a claim is brought within par (a) of ss 8(1) or 9(1), as distinct from some other paragraph within those sub-sections.

89                  We are unable to accept that submission. Such an interpretation would not be consistent with what we consider to have been the manifest intent of the legislature when it introduced s 120A in 1994. That intent was to ensure that all future claims involving matters of medical-scientific opinion, as to which an SoP was in force, would have to meet the requirements of that SoP.

90                  The Explanatory Memorandum in relation to the Bill for the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth), which introduced s 120A, makes clear the intent behind the new regime. It includes the following statements:

“… It has become apparent that lay tribunals do not deal with medical-scientific issues consistently and that the adversarial approach to fact finding applied in administrative tribunals is inappropriate for determining medical-scientific issues that call for detailed technical knowledge.

The Repatriation Medical Authority will provide the appropriate forum for the resolution of technical medical-scientific issues. This will ensure that there will be consistency on medical-scientific issues at all levels of the determining system.

…

The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service.” (Emphasis added.)

91                  The applicants’ submissions are not easily reconciled with these passages. We can see nothing in the language of ss 8(1)(a) or 9(1)(a) which lends support to the conclusion that claims brought under those provisions are to be dealt with in a different manner to claims brought under other paragraphs of those sub-sections.

92                  Manifestly, a number of the other paragraphs within sub-sections 8(1) and 9(1) are subject to the SoP regime. See for example ss 8(1)(b) and 9(1)(b) which make it clear that “death”, or “injury or disease” contracted by a veteran, are taken to be war-caused if they “arose out of, or [were] attributable to” any eligible war service rendered by the veteran. These paragraphs may be contrasted with s 8(1)(f) which provides expressly that if the veteran has died from an injury or disease already determined by the Commission to have been war-caused, the death must also be taken to have been war-caused. Accordingly, in such cases the Commission is not required to relate the death to eligible war service rendered by the veteran, and s 120A does not apply.

93                  The fact that the legislature expressly excluded the operation of s 120A in s 8(1)(f) provides some textual support for the proposition that it did not impliedly exclude the operation of that section in relation to s 8(1)(a).

94                  As indicated earlier, we accept the respondent’s submission that the passages in Keeley upon which the applicants rely were dicta and not part of the ratio of the case. It is therefore, strictly speaking, unnecessary for this Court to be satisfied that those passages were “clearly erroneous” before declining to follow them.

95                  We also agree with the AAT that the passages in the joint judgment of Lee and Cooper JJ in Keeley are difficult to reconcile with some of the observations of the Full Court, approximately one year earlier, in McKenna. We note in particular that the case concerned a claim made under s 9, and that the Full Court, constituted by Branson, Sundberg and Kenny JJ, treated that claim as though it necessitated compliance with an SoP which had been determined in respect of the kinds of diseases suffered by the veteran (see 149, 151). There was no specific reference to s 9(1)(a), but the general tenor of the reasoning suggests that no distinction was contemplated between that paragraph and any other paragraphs contained within the sub-section. It should be noted that the Full Court in Keeley made no reference to McKenna.

96                  In addition we agree with the AAT that it is difficult to reconcile the reasoning in Keeley with the earlier decision of the AAT in Re Jenkin. In Re Jenkin, a submission was advanced on behalf of the applicant which bore some similarities with the submissions advanced on behalf of the applicants in the present case. It was submitted that the Commission, when considering whether the veteran’s death was war-caused, was not restricted in its deliberations to the terms of the relevant SoP. It was bound, so it was submitted, to consider all of the material before it when determining whether the death was war-caused. That could include material outside the SoP. A failure to fall within the SoP was not decisive. Section 120(1) was the overriding provision.

97                  The AAT in Re Jenkin rejected each of these submissions. It referred in detail to the Explanatory Memorandum set out above at [88], and also to the Second Reading speech given by Senator Crowley on 9 June 1994. It said at 732:

“44. It is clear from this that the intention of the legislature in introducing these amendments was to make the SoPs binding upon the Repatriation Commission and the various review bodies, or, to adopt the minister’s words, to give the SoPs the status of templates setting out the minimum conditions which must exist before a claim can succeed.

45. The applicant’s submission would, if successful, undermine this legislative intention as it would involve retaining a situation whereby death could be found to be war-caused notwithstanding that it fell outside the provisions of a relevant SoP, unless, within the terms of s 120(1) the commission was satisfied, beyond reasonable doubt, that there was no sufficient ground for making that finding.

46. Nevertheless, the mere fact that parliament intended a particular consequence to flow from its legislative action is, on its own, irrelevant unless the legislation is at least capable of giving rise to that interpretation. Cases are numerous of legislation being inadequate to put into effect what was clearly the parliamentary intention when it was enacted.

47. This case, however, does not fall within this category. In our opinion the terms of the amendments clearly and unambiguously reflect the parliamentary intention. Any other interpretation would fly in the face of the plain wording of ss 120A and 196B(2). Moreover the insertion of the notes at the end of subss (1) and (3) of s 120 clearly shows that these subbss are interrelated (as is apparent, in any event, form the terms of subs (3)[)] and are affected by s 120A. Section 5U of the Act provides that notes at the end of a subsection should be taken as part of the subsection.”

98                  In addition, there are other cases in this Court in which statements regarding the effect of s 120A have been made which are difficult to reconcile with the observations in Keeley. For example, a Full Court in Repatriation Commission v Hill (2002) 69 ALD 581, constituted by Black CJ, Drummond and Kenny JJ, observed at 597:

“Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP.”

99                  See also Deledio v Repatriation Commission at 274-275; Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 and Connors v Repatriation Commission (2000) 59 ALD 61 at 68-70.

100               We turn now to the second variant of the applicants’ submission relating to the common question of law. We consider that this variant is equally untenable. There is no warrant in the language, or structure, of the Act for any distinction to be drawn between a hypothesis which is likely to involve “medical-scientific” opinion, and one not likely to do so. Once an SoP is determined in relation to a particular condition, it covers the field in relation to that condition. However, even if we were wrong about that, it would not avail either applicant. Our reasons for arriving at that conclusion are as follows.

101               The possible connection between Mr Gundry’s respiratory infection, and his asthma, was in our view very much a “medical-scientific” question. The same is true of any possible connection between Mr Woodward’s experiences in Vietnam and his PTSD, or alcohol dependence or alcohol abuse.

102               In addition to the two variants of the applicants’ submissions discussed above, there are several matters that should be emphasised with regard to Mrs Gundry’s claim. Assuming that her husband’s episode of respiratory infection in 1941 was an “occurrence” within s 8(1)(a), the question whether his asthma, or related respiratory conditions, were war-caused still required the AAT to consider whether either or both those diseases was caused by (“resulted from”) that episode. Section 120A(3) required that causal relationship be tested against the applicable SoP.

103               It is true that Mrs Gundry’s claim was supported by the opinion of a medical practitioner that there existed a causal link between her husband’s episode of respiratory infection and his asthma. However, since 1994, the existence of that causal link has not been a matter for a medical witness once it is established that the “kind of injury” is one for which there is an SoP, or in respect of which there is a determination under s 180A(2). The point of the introduction in 1994 of ss 120A and 196B was to render the opinions of medical experts irrelevant to the question whether a particular disease was war-caused. Rather, that issue was put in the hands of an expert medical body, the Repatriation Medical Authority. The SoP for Asthma contained a template which Mrs Gundry had to satisfy. The opinion of a single medical practitioner did not, and could not, replace that template.

104               For the same reasons, we consider that Mr Woodward’s claim that his PTSD, and his alcohol dependence or alcohol abuse, were connected to his service in Vietnam still required a causal relationship between the claimed conditions, and his service. That causal relationship could only be demonstrated through the template contained in the SoPs for PTSD and Alcohol Dependence or Alcohol Abuse.

105               To summarise the position, if any of Mr Woodward’s experiences in Vietnam were “occurrences” within s 9(1)(a) the question whether the diseases which he contracted were war-caused required the AAT to consider whether those diseases were caused by (“resulted from”) those experiences. That question could only be resolved by reference to ss 120(1), 120(3) and 120A. For the reasons set out earlier, those sections in turn required consideration to be given to the relevant SoPs in force.

106               Given that Mrs Gundry’s appeal is based solely upon the common question of law, her appeal must be dismissed. Mr Woodward’s appeal, to the extent that it relies upon the observations in Keeley, must also fail.

Conclusions regarding Mr Woodward’s alternative grounds of appeal

107               There is, however, still to be determined the other basis upon which Mr Woodward’s appeal rests. Although his submissions were formulated in elaborate terms, and sought to establish that the AAT had fallen into error in a variety of ways, in substance his argument was quite simple. He contended that the AAT erred in concluding that the material raised in his case did not point to his having “experienced a severe stressor”, as defined in the relevant SoPs.

108               The AAT had arrived at that conclusion because it considered that the definition of that expression, contained within the SoPs for PTSD and alcohol dependence, suggested that the person must have been present at, observed, encountered, or been faced with an event of the type described. The AAT found that the material did not suggest that Mr Woodward had witnessed or been confronted with any such event. However, it proceeded on the basis that there was an objective element to the term “experienced a severe stressor” in each SoP, an approach which Mr Woodward submitted was misconceived.

109               It is true that Mr Woodward sought to establish this ground by submitting that the AAT had embarked upon the task of finding facts prematurely when it ought to have been concerned solely with an anterior question, namely whether the material pointed to the relevant factor. He supported that submission by noting that the AAT had referred to the definition of PTSD in the relevant SoP as requiring an “an objective analysis and interpretation of the events of the applicant’s service” and distinguished that requirement from a “subjective” analysis which applied to a different part of the definition. The AAT noted that this “objective” analysis was consistent with many of its previous decisions.

110               We reject this submission. It is true that the AAT discussed the objective and subjective elements in the definition of PTSD, and suggested that a similar analysis might apply to the definition of “experiencing a severe stressor”. However, its opinion in that regard was, in our view, a digression from its primary reasoning. In substance, the AAT simply found, as a fact, that Mr Woodward’s evidence about his experiences in Vietnam did not point to his having experienced a severe stressor, as defined in the SoPs. In other words, the hypothesis raised by that material, did not fit the template. Deledio makes clear that fact finding should only occur at the final stage of the process. In our view, the AAT was not “finding facts”, in any relevant sense, when it assessed the material before it, and considered whether it “pointed to” the factors contained in the template. The AAT was fully aware of the limited nature of the task confronting it.

111               Nevertheless, it is appropriate at this point to say something on the question whether “experiencing a severe stressor” contains an objective component, although it will be necessary to return to the issue later in these reasons. We note that neither party in this case argued that “experiencing a severe stressor” did not contain an objective element. We also note that in O’Neil v Repatriation Commission (2001) 34 AAR 290, North J was concerned with the meaning to be accorded to the expression “stressful event” in the SoP for generalised anxiety disorder. That expression was defined as “an occurrence which evokes feelings of anxiety or stress”. His Honour found that the expression had two elements. The first, the occurrence, was held to be objective, and the second, the feelings of anxiety or stress, was held to be subjective.

112               No obvious reason occurs to us as to why the two definitions should be fundamentally different in the sense that one contains an objective requirement and the other does not. On the other hand, the subject of the sentence in the definition of “stressful event” was “the occurrence”, whilst the subject of the sentence in respect of the definition of “experiencing a severe stressor” is “the person”. As a matter of ordinary English usage it may be easier to read the definition of “experiencing a severe stressor” as being entirely subjective than it is the definition of “stressful event” considered by North J. But whether there should be any difference in approach for the purposes of identifying a reasonable hypothesis as to the causation of a medical condition is another matter entirely.

113               It seems to us that this is the nub of the problem of how the relevant words in the SoP are to be interpreted. The SoP has been developed by an expert medical panel. It needs to be interpreted against that background. This is particularly so when (as here) the SoP adopts a medical definition which was produced by medical specialists as a diagnostic tool for other medical specialists. That is what this SoP does in its express reference to DSM-IV and ICD-9-CM code. To interpret the SoP as if it were a conveyancing document is to misunderstand the task. What is necessary is to understand what it was intended to convey by those charged with the responsibility for its production. Where it appears that the language has been used with a specialised meaning in a particular area of speciality then the words are to be understood with that meaning. Of course, the distinction between an ordinary and specialised meaning may be a matter of degree: see Collector of Customs v AGFA-Gevaert (1996) 186 CLR 389. But in determining whether there is any specialised meaning and what that meaning is the AAT may refer to authoritative medical texts: see McMullen v Commissioner for Superannuation (1984) 61 ALR 189, 207-209. It may also receive expert evidence: see Pearce & Geddes Statutory Interpretation in Australia (5^th edition) at 99-101 and see General Accident Fire and Life Assurance Corporation v Commissioner of Payroll Tax (1982) 56 ALJR 775, 777. For example, medical evidence as to the meaning of a statutory instrument was received in Comcare v Watson [1997] FCA 149.

114               In the absence of any such material the AAT was left to interpret the definition of “experiencing a severe stressor” as best it could. This does not mean that the correct interpretation of the SoP changes from case to case depending upon the material put before the AAT. What it means is that, in the absence of an authoritative and detailed exposition of the correct interpretation, the Tribunal has no choice but to interpret the SoP as best it can on the material it has available. In this case it did so by looking to the ordinary meaning of the words. The AAT accepted and discussed the proposition (which was not disputed) that the definition involved an objective and a subjective element. We have already pointed out that this was a digression from the central reasoning of the AAT. In any event, on the material before the AAT, there was no error in the conclusion it reached that, on the ordinary meaning of the words, there is an objective aspect of the definition. This does not mean that if evidence was given that the relevant words have a specialised and technical meaning the result would be the same. But that evidence was not present in this case. For these reasons Mr Woodward’s claim that the AAT erred in the manner in which it applied the SoP, as set out above, must fail.

115               There is, however, another basis upon which that claim was put. As noted earlier, Mr Woodward’s grounds of appeal sought to challenge the AAT’s interpretation of the words “experienced”, “witnessed” and “confronted with”. He submitted that the AAT gave an unduly narrow meaning to those words, thereby leading to rejection of his claim.

116               As we have pointed out, the respondent accepted, in its written submissions in reply, that the AAT may indeed have adopted an unduly narrow construction of these words. It submitted, however, that the AAT had not based its conclusion that the material before it did not point to a hypothesis of the kind required by the SoP on any finding that Mr Woodward had not “experienced”, “witnessed” or been “confronted” with an event or events. Rather, it submitted, the basis for the AAT’s decision that he did not satisfy the requirements of the relevant SoPs was that the events identified in his evidence were not “events that involved actual or threatened death or serious injury to himself or others”. That conclusion was said to be unexceptionable.

117               We are unable to accept that submission. The AAT’s reasons for rejecting Mr Woodward’s claim that he fell within the definition of “experiencing a severe stressor” were brief in the extreme. We have set them out at [60] above. The AAT stated, simply, that there was no material raised or pointing to Mr Woodward’s experiencing, witnessing or being confronted with an event or events involving actual or threatened death or serious injury to himself or others. It did not explain why that was so.

118               It is impossible to tell from the AAT’s reasons whether this was because it concluded that the material failed to point to Mr Woodward having experienced, witnessed or been confronted with an event of the type specified, or whether the material failed to point to the happening of any event of that type.

119               It is significant that the AAT apparently approved what is now acknowledged to be an unduly narrow interpretation of at least two of the words used in the definition of “experiencing a severe stressor” immediately prior to rejecting Mr Woodward’s claim. That in itself suggests that, contrary to the respondent’s submission, the erroneous interpretation of those words, may have played a part in the rejection of that claim.

120               The respondent submitted that none of Mr Woodward’s experiences in Vietnam could be said to have involved actual or threatened death, or serious injury to himself or others. It contended that the only experience that could be said to be connected, in any way, with the death of another was the role which Mr Woodward played in collecting Captain Donald’s effects. It was said to be significant that Mr Woodward had not been present at the scene of the helicopter crash. Moreover, there was no suggestion that he had seen either body, and no material to suggest that he was a friend of either deceased. It was submitted that the mere fact that he had been required to prepare reports concerning the death of the two men and to pack Captain Donald’s possessions could not conceivably amount to his having “experienced” or been “confronted with” the actual death of another.

121               We reject this analysis because, whatever may be said about the extent to which the material pointed to Mr Woodward having “experienced an event that involved…death” (as to which we do not need to express a view) the analysis requires an altogether too narrow a view of the notion of being “confronted with” such an event.

122               The definition of “experiencing a severe stressor” has three elements that relate to a person’s encounter with an event involving death – the person must have “experienced, witnessed or [have been] confronted with an event that involved death...”. Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be “confronted with” an event that he or she has neither experienced nor witnessed.

123               In any event, as a matter of ordinary usage to be “confronted” with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he “confronts”. This is no less the case when the confronting event is one involving death or serious injury.

124               In the present context the point becomes clearer when reference is made to the second paragraph of the definition. This illuminates the definition by giving examples of events that those who drafted it had in mind as falling within it. The second paragraph states that events that qualify as stressors in the setting of service in the Defence Forces include “participation in or observation of casualty clearance”. A member of the armed forces taking part in casualty clearance may well have been outside the area of immediate conflict and have neither experienced nor witnessed the events that caused the casualties, yet it is easy to see how such a person could be “confronted with” such events.

125               An example taken from earlier conflicts may illustrate the range of situations which, as a matter of ordinary usage and context, the definition can be seen to cover. A sailor in a warship escorting a convoy may come face to face with events involving death in any one (or more) of three ways. He may experience an attack upon his ship, he may witness the loss of another vessel and by attending to casualties in the sickbay he may be confronted with events he has not seen or experienced. There may of course be an overlap of these stressor events, but that possibility does not deny their separate character.

126               The language of the definition provides no warrant to confine the confrontation with an event involving death, of which the definition speaks, to an event involving the death of a family member or other close associate. Indeed, the illumination provided by the second paragraph of the definition would suggest the very opposite, since it is hardly to be supposed that the general reference to casualties and casualty clearance was intended to be qualified in a way which, in the context, would be quite exceptional.

127               In these circumstances the AAT’s brief statement that there was no material raising or pointing to Mr Woodward “experiencing, witnessing, or being confronted with an event… involving death…” reveals that it misinterpreted the SoP in a material way, and in particular that it misunderstood and misapplied the critical definition of “experiencing a severe stressor”. In doing so it erred in law.

128               The material pointed unequivocally to there having been an event involving death. This was the death, when their aircraft had been shot down, of the two pilots with whom, according to the material, Mr Woodward had flown on operations against the enemy. The material also pointed unequivocally to Mr Woodward being brought face to face with the reality of death on active service. This occurred not only by his having to process forms concerning the deaths (Mr Woodward was a clerk) and by his having to pack the belongings of one of the pilots who had been shot down but also, and perhaps more acutely, by his coming face to face with death on active service by seeing the images, amongst the belongings in the tent, of those whom he believed to be the dead pilot’s wife and young daughter. Had the AAT brought to its task a correct understanding of the definition of “experiencing a severe stressor” it might very well have concluded that, in these circumstances, Mr Woodward was relevantly “confronted with an event … that involved actual death…”.

129               It was argued on behalf of the respondent that where a veteran has not seen the events leading to the death, or the body, it is necessary that the deceased be a member of the veteran’s family or a “close friend”. But as we have indicated, the definition read as whole would suggest otherwise. In any case the issue was not explored.

130               The rejection of Mr Woodward’s claim having been based upon a misunderstanding of the relevant definition, it follows that his application must be remitted to the AAT to be reconsidered and determined according to law.

131               It is nevertheless desirable that we consider another basis upon which, in the submission of counsel for Mr Woodward, the AAT erred in law. This involves a consideration of the same definition but from a different viewpoint.

132               Mr Woodward’s claim relied upon more than his experience of, or confrontation with, the event involving the shooting down of the helicopter and the death of those in it. He also claimed that he had experienced or been confronted with events that involved the threat, to him, of death or serious injury; he relied upon his experiences on patrol in Vietnam as summarised earlier in these reasons. This basis too was encompassed in the brief passage in the AAT’s reasons rejecting his claim that we have previously set out.

133               The respondent barely addressed this aspect of the case in any of its written submissions. It simply asserted that Mr Woodward had not been involved in any encounter with the enemy and did not witness any casualty. He was unaware whether his base, Nui Dat, had ever been attacked. He could only say that he “felt” as if he could be “shot at, killed or wounded” whilst on the patrols but these experiences, the respondent submitted, fell short of meeting the requirements of the template.

134               The AAT accepted that the material pointed to the applicant being in fear and that he had a sense of helplessness and horror. Indeed it appears to have made a finding of fact that such was the applicant’s state of mind. Moreover, it may well be that a person in the position of the applicant on patrol in Vietnam in the circumstances outlined in [14] above, and particular in relation to the incident in which noises he heard were apprehended to be made by the Viet Cong for whose presence the patrol was searching, would reasonably perceive that he was under threat of death or serious injury from the enemy. Such a person might reasonably perceive that an actual engagement with the enemy might occur at any moment. The problem that Mr Woodward appears to have faced before the AAT was that the material was not seen as pointing to an actual threat of death or injury as opposed to a perceived threat. It seems that the Tribunal accepted a distinction propounded by counsel for the Commission that the threat of death or serious injury must be real, judged objectively. The possibility is thus raised that the Tribunal misunderstood and misapplied the relevant definition in this respect also.

135               The question then is whether material pointing to a genuine belief based on reasonable grounds that an event or events involve a threat of death or serious injury can satisfy the definition of “experiencing a severe stressor” when there is no material pointing to the reality in fact of what is genuinely and reasonably perceived.

136               When the question ultimately in issue involves the effect of an objectively stressful event upon a person’s mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of the reality, should be determinative. Examples that bring any such distinction into question come readily to mind: the passenger in an aircraft who overhears another saying that he has an explosive device, or the shopkeeper threatened with a shotgun (in fact unloaded) are just two such examples.

137               In Stoddart v Repatriation Commission (2003) 197 ALR 283 (“Stoddart”), Mansfield J held that the AAT had erred in requiring that a “threat” be one that, judged objectively and remote from the circumstances and state of knowledge of the person experiencing it, has a real or actual prospect of resulting in death or serious injury. His Honour considered that by doing so the Tribunal had thereby imported into the concept of “threat” in the applicable SoPs more than was demanded by their wording and their purpose: see at [41].

138               Mansfield J observed:

“[47] It is not apparent to me why the SoPs should distinguish between events which actually involved the threat of death or serious injury leading to ALD [alcohol liver damage] or PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to ALD or PTSD. The respondent contends, and the tribunal accepted, that in the former case the conditions are consistent with an hypothesis of being war-caused, but in the latter case they should be seen beyond reasonable doubt as not consistent with an hypothesis of being war-caused. In this matter, if the applicant is believed about the occasions he referred to, his operational service was in an area where his vessel might come under attack (but did not) and battle stations were signalled and he feared for his personal integrity and suffered ALD and PTSD as a result.

…

[50] In my judgment, the meaning of the word ‘threat’ as used in the definition of ‘experiencing a severe stressor’ does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause ‘that involved actual or threat of death or serious injury’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the ‘threat’ there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. … That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word ‘threat’ a range of circumstances, some of which are referred to above, which common sense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of ‘sound medical-scientific evidence’ in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the tribunal adopted.”

139               Mansfield J concluded that the AAT erred in law in its understanding of the expression “experiencing a severe stressor” in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances.. In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.

140               It would be open to the AAT to conclude the situation involving Mr Woodward was similar, in relevant respects, to that considered by Mansfield J in Stoddart. It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to Mr Woodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more “events” which precipitated the perception and that the events were real in the sense that they had an objective existence. If the reasoning of Mansfield J is accepted, the material before the AAT was capable of satisfying the requirements of the definition of “experiencing a severe stressor” in the SoP in relation to the incident on patrol.

141               We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable. That situation does not appear to be relevant to the present case and in the absence of full argument on the point we should not express an opinion about it. We also draw attention to the fact that the AAT had no evidence before it of any specialised meaning or usage. Our conclusion is based, as was the reasoning of Mansfield J, upon the text of the SoP having regard to context and purpose.

142               We consider that the Tribunal was in error in this further respect and that provides an additional reason why Mr Woodward’s application must be remitted to the AAT to be reconsidered and determined according to law.

Associate:

Dated: 30 July 2003