FEDERAL COURT OF AUSTRALIA

Summers v Repatriation Commission [2012] FCAFC 104

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of North J of 8 November 2011 be set aside and in lieu thereof it be ordered that:

1.    The order of the Tribunal dated 20 October 2010 affirming the decisions of the Veterans Review Board of 21 April 2009 in applications V07/0174 and V08/0307 be set aside.

2.    The matter be remitted to the Tribunal for determination according to law.

3.    There be no order as to costs of the trial.

3.    There be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Court

1    Mr Summers served in the Army during the Vietnam War. On 26 October 1968 he was in Sydney drinking with a fellow soldier at Watson’s Bay Hotel. They became involved in an alteration with a group of sailors. As they left the hotel to return to the army base the sailors followed. What happened next is unclear. An investigating officer’s report suggests not only that Mr Summers was involved in a brawl with a sailor during which both had fallen over a cliff on to a rock ledge below but that all parties had been affected by alcohol. Mr Summers does not really recall what happened although he believed that he had been thrown over the cliff by the sailors. In any event, his recollection is that he awoke the next day in hospital with life-threatening injuries to his neck, head and back. He was told he had been found unconscious that morning at the base of the cliff and was fortunate he had not been swept out to sea.

2    This unfortunate incident took place whilst Mr Summers had been on compassionate leave from Vietnam to attend the funeral of his father. As a result of his injuries he did not return to Vietnam but served out the balance of his national service in the Officers’ Mess at Victoria Barracks in Melbourne.

3    For some time now Mr Summers has been in receipt of a pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) at 100% of the general pension rate. Pursuant to s 24 of the Act, if he is able to show that his degree of incapacity is at least 70%, that this is war-caused and that it has rendered him unable to work for more than 8 hours per week he will be able to obtain a pension at the “special rate” which is more than 100% of the general rate. This appeal is concerned with his unsuccessful application for such a pension.

4    Mr Summers receives his pension at 100% of the general rate because at an earlier time it was accepted that he suffered from a number of war-caused conditions. These included bilateral sensorineural hearing loss, chronic bronchitis, emphysema and lumbar spondylosis.

5    In order to obtain his special rate pension Mr Summers needed to lead evidence that he was unable to work for more than eight hours per week and that this incapacity was “war-caused”: s 24(1)(b). The evidence led on Mr Summers’ behalf suggested that he was unable to work for more than 8 hours per week but this was because he was suffering from alcohol dependence and post-traumatic stress disorder (“PTSD”) which made him aggressive in the workplace (and, therefore, difficult to employ). In a practical sense, if he was to obtain the pension at the increased rate he needed to show – or more precisely, it would be to his advantage to show – that his alcohol dependence and PTSD were themselves war-caused.

6    There were, therefore, four issues before the Administrative Appeals Tribunal (“the Tribunal”):

(a)    did Mr Summers have war-caused PTSD;

(b)    did Mr Summers have war-caused alcohol dependence;

(c)    was Mr Summers unable to work for more than 8 hours per week; and, if so

(d)    were the conditions giving rise to that inability war-caused.

7    These four issues appear to have been reflected in two review decisions in the Tribunal. Before the Veterans’ Review Board (whose decisions the Tribunal was reviewing) there were two applications: (a) an application to review an earlier decision by the Repatriation Commission (“the Commission”) to continue (rather than increase) Mr Summers’ pension at 100% of the general rate (V07/0174); and (b) an application to review a decision of the Repatriation Commission refusing to accept Mr Summers’ freshly claimed conditions of PTSD and alcohol dependence (V08/0307) together with a review of the general rate. Both of these review applications were refused by the Board.

8    From those two refusals there was then filed with the Tribunal a single application for review. For reasons which are not apparent this generated two files within the Tribunal (2007/3957 and 2009/2689). The material before this Court does not allow a view to be formed about the differences between these two files. It is likely that one relates to the claim for the special rate pension and the other to the claim for PTSD and alcohol dependence. The reasons of the Tribunal are consistent with this view of affairs although it did not formally identify what it was doing.

9    The Tribunal reached the following conclusions (Summers v Repatriation Commission [2010] AATA 803):

(a)    Mr Summers was not suffering from PTSD;

(b)    Mr Summers was suffering from alcohol dependence but this was not war-caused;

(c)    Mr Summers was unable to work for more than 8 hours per week; but

(d)    this would not have been the case without his alcohol dependence and PTSD neither of which was war-caused; and

(e)    he was not therefore entitled to a special rate pension.

10    There is an obvious contradiction between (a) and (d) which is not, in our opinion, in any way mediated by the Tribunal referring to Mr Summers’ PTSD as his “psychological condition” when it reached that part of its judgment dealing with (d) (see, for e.g., [44]). However, this contradiction was not a matter relied upon by Mr Summers in the present appeal.

11    Instead, the issues discussed in written and oral argument before this Court were confined to the Tribunal’s treatment of PTSD and alcohol dependence, although Mr Summers’ notice of appeal did formally challenge the Tribunal’s conclusion on the special rate pension. It will follow from what we have said above, however, that success on one or either of those issues will require a reassessment by the Tribunal of the question of Mr Summers’ special rate pension. That was the entire point of the proceedings.

12    The primary trial judge was unable to discern error in the manner in which the Tribunal had approached Mr Summers’ claims about post-traumatic stress disorder or alcohol dependence: Summers v Repatriation Commission [2012] FCA 1451. He did not need, therefore, to consider how the special rate pension question should be determined.

13    For the reasons which follow his Honour erred in his treatment of alcohol dependence. The appeal should therefore be allowed.

14    The issues arising from post-traumatic stress disorder differ from those arising from alcohol dependence. It is convenient to deal first with post-traumatic stress disorder.

Post-traumatic stress disorder

15    The Act gave Mr Summers an entitlement to claim a pension (whether at a special rate or otherwise) if he had become incapacitated by a war-caused disease: s 13(1).

16    An important element in making good his entitlement to a pension was, therefore, the establishment as a fact that he was incapacitated by a war-caused disease. So much arises from the language of s 13(1)(b) which, in terms, confers the pension where “a veteran is incapacitated from a war-caused injury or a war-caused disease”. Consequently two distinct inquiries are involved. The first is one of diagnosis: does the veteran suffer from a disease or injury? The second is one of causation: was the disease or injury war-caused?

17    Commonsense suggests, and the course of authority in this Court confirms, that there can be no embarkation on the second question of whether an injury or disease is war-caused unless and until there has been an anterior determination that the veteran is incapacitated by a disease or injury: “It is, however, only after a decision-maker determines that a veteran is suffering from a particular injury or disease (or this fact is agreed or conceded) that the question arises as to whether the particular injury or disease is war-caused…”: Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136 at [37] per Kenny J (with whom Spender and Tamberlin JJ agreed).

18    Mr Summer’s case was that he was incapacitated by PTSD and that it was war-caused. Consequently, the first question which required resolution, as might naturally be expected, was whether Mr Summers was, in fact, suffering from PTSD. On the determination of this central issue the Act provides explicit guidance on the level of satisfaction that the Tribunal had to feel that Mr Summers was suffering from PTSD. Section 120(4) provides that in making any determination under the Act the Commission (and in its shoes, the Tribunal) is to “decide the matter according to its reasonable satisfaction”. The expression “disease” is defined in s 5D to mean, inter alia, “any physical or mental ailment, disorder, defect or morbid condition” so that the question for the Tribunal was whether it was reasonably satisfied that he was suffering, in this case, from a mental ailment.

19    The question of whether Mr Summers had PTSD was, at least on its face, one of diagnosis involving expert medical opinion.

20    In relation to a number of kinds of ailment there exist Statements of Principles which are delegated instruments under the Act. There is such a statement in the case of PTSD: Statement of Principles concerning Post Traumatic Stress Disorder (SoP No 5 of 2008). It defines the condition in cl 3 in the following terms:

Kind of injury, disease or death

3. (a)    This Statement of Principles is about posttraumatic stress disorder and death from posttraumatic stress disorder.

(b)    For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):

(A)    the person has been exposed to a traumatic event in which:

(i)     the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii)     the person’s response involved intense fear, helplessness, or horror; and

(B)     the traumatic event is persistently re-experienced in one or more of the following ways:

(i)     recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii)     recurrent distressing dreams of the event;

(iii)     acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv)     intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;

(v)     physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and

(C)     persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i)     efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii)     efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii)     inability to recall an important aspect of the trauma;

(iv)     markedly diminished interest or participation in significant activities;

(v)     feeling of detachment or estrangement from others;

(vi)     restricted range of affect (e.g., unable to have loving feelings);

(vii)     sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and

(D)     persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i)     difficulty falling or staying asleep;

(ii)     irritability or outbursts of anger;

(iii)     difficulty concentrating;

(iv)     hypervigilance;

(v)     exaggerated startle response; and

(E)     duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(F)     the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

(c)    Posttraumatic stress disorder attracts ICD-10-AM code F43.1.

(d)    In the application of this Statement of Principles, the definition of "posttraumatic stress disorder" is that given at paragraph 3(b) above.

21    For the Tribunal to be satisfied that Mr Summers suffered from PTSD it therefore had to be reasonably satisfied of the six matters in sub-cll (b)(A)-(F).

22    Debate in this case centres around the subject matter of cl 3(b)(A), that is, the need for there to have been a traumatic incident and for Mr Summers to have had a response involving fear, helplessness or horror. The Tribunal approached this issue by asking what was required by the definition of PTSD in the Diagnostic and Statistical Manual of Mental Disorders (4th Ed, Text Revision) (DSM-IV). This was in precisely the same terms as cl 3(b)(A). There is no utility in deciding, therefore, whether the Tribunal should have limited itself to the definition in the Statement.

23    In order for the Tribunal to make a finding about cl 3(b)(A) it therefore needed to be reasonably satisfied as to the occurrence of a traumatic event – here falling off a cliff – and of Mr Summers having experienced a response involving feelings of fear, helplessness or horror.

24    There were two ways in which these matters might have been found by the Tribunal. These were that:

(a)    the fall down the cliff was a traumatic event and that it had immediately engendered in Mr Summers a response involving feelings of fear, helplessness or horror; or

(b)    the fall down the cliff was a traumatic event and that, when he regained consciousness in the hospital the following day (and perhaps in the days which followed), reflection on the devastating events which had befallen him engendered the requisite feelings of fear, helplessness or horror.

25    Before the Tribunal counsel for Mr Summers opened his case in a way which did not distinguish these two possibilities, Indeed beyond referring to Mr Summers as having suffered a “fairly decent drop” the submission (which was, to be fair, only a summary outline) was that the fall was:

an incident which might have caused – a near death incident that might have caused his post-traumatic stress disorder.

26    In its opening the Commission accepted that Mr Summers had fallen down the cliff and signalled that its defence would be that he could not remember the incident:

[S]o if that is correct, Mr Summers in fact had no memory of the incident. He woke up in hospital and that was it. He had injuries in hospital. So in that situation, it’s hard to have a severe stressor, if you were drunk and then you woke up without memory of the incident. If it were an assault that one was cognizant of, certainly, that would be a category 1A stressor.

27    At least at the start of the hearing before the Tribunal it is clear, therefore, that no case was being advanced that the feelings of fear, helplessness or horror had only occurred during the aftermath in hospital.

28    Mr Summers denied being so drunk that he could not remember the incident. Significantly, no evidence was elicited from Mr Summers that he had suffered feelings of fear either at the time he had fallen down the cliff or during the aftermath in hospital.

29    This was a serious omission. It meant that there was no direct evidence of one of the necessary elements for a diagnosis. Four psychiatrists gave evidence. Of these only one – Dr Pomorin – mentioned the fall down the cliff (at that stage other traumatic events, not necessary to relate here, were still being put forward by Mr Summers) but he did not accept that Mr Summers had PTSD. Dr Velakoulis thought Mr Summers had PTSD but he took no history from Mr Summers about the fall and did not express an opinion that the PTSD was a result of the fall.

30    Furthermore, the cross-examination by counsel for Mr Summers of the psychiatrist called by the Commission – Dr Strauss – resulted in evidence from him that he did not think that Mr Summers had suffered a trauma in a psychological sense from the fall at all:

But did you think that there was something that could be taken into account? --- Well, it was taken into account that he was drunk. His memory of it is very patchy and many people having traumatic experiences have traumatic memories of their time in hospital as opposed to the actual experience. I’m not convinced that he found that experience traumatic in the psychological sense. He may have found his time in hospital improving from it traumatic, but I wasn’t left with the impression that the actual experience was traumatic.

But if you wake up in hospital and you know that you fell over a cliff and they tell you that you nearly got washed away with the tide, somebody pulled you up, and then you went through the trauma of intensive care, surely that in itself would be an event sufficient to give you a traumatic – post-traumatic stress disorder? --- Well, yes, but is it the period in hospital, or is it the actual experience? I’m not convinced that – I’m not convinced he’s got a post-traumatic stress disorder from that. I don’t think he’s got a post-traumatic stress disorder. So we’re talking hypothetically. Sure, being pushed over a cliff and being aware of it could well produce that condition. I can’t argue with that.

31    Of this evidence two matters might be observed. First, whilst Mr Summers’ inability to recall the incident by reason of alcohol was consistent both with a case that he had suffered a psychological trauma which he had forgotten and also the proposition that, by reason of drunkenness, no psychological trauma had been suffered at all, Dr Strauss’s evidence supported the latter view. Secondly, Dr Strauss was willing to accept as a theoretical possibility that Mr Summers might have found his time in hospital traumatic in the requisite sense. Of course, Mr Summers had not given any evidence to that effect.

32    This evidence from Dr Strauss immediately enlivened counsel for Mr Summers into an application to call Dr Velakoulis to give evidence about this aspect of the matter. The following exchange took place:

Mr De Marchi:    I’m not sure, sir, whether you would be assisted by Dr Velakoulis, given that evidence. I don’t think it’s going to turn on the facts of the case as to whether you accept that there was the assault and the falling over, and also the increased alcohol consumption when he was here in Australia after the funeral.

Mr Friedman:    Yes, the only thing is, Dr Velakoulis didn’t refer to that in his diagnosis.

Mr De Marchi:    No, no, he didn’t have that, and Dr Strauss has, you know, clearly indicated, you know, he didn’t think that he knew about it, and therefore couldn’t have suffered any stress.

Mr Friedman:    Well, if you – I think ---

Mr De Marchi:    Maybe I should attempt to ---

Mr Friedman:    I think someone wants to say something.

Mr Summers:    Originally when I saw Dr Velakoulis it was mentioned, and – well, I mentioned it to him, because he’s my psych, but I was told it had nothing to do with , you know, any claims or that, because – what I was told then, I didn’t even think. So Dr Velakoulis just doesn’t hasn’t… and never really, you know, been into it with me.

Mr Friedman:    That raises a question, Mr De Marchi, whether you believe Dr Velakoulis should be asked – should be given the opportunity to consider it.

Mr De Marchi:    About that, yes. I think other than those circumstances ---

Mr Friedman:    Given that he’s the treating psychiatrist.

Mr De Marchi:    Yes.

Mr Friedman:    So I would have thought his evidence might be important on that aspect.

Mr De Marchi:    Perhaps if I could be given another 10 minutes?

33    Dr Velakoulis was not able to attend in time that afternoon. The Tribunal therefore adjourned the proceedings part-heard to Thursday 14 October 2010. During its recess Mr Summers again consulted with Dr Velakoulis on 1 September 2001. At that time Dr Velakoulis took a more detailed history of the incident. Upon the resumption of the hearing counsel for Mr Summers elicited evidence of the fact that Dr Velakoulis was now aware of Mr Summers having fallen down the cliff. The following evidence was then elicited on the diagnostic issues:

Right. Now, one of the issues in this case is that that incident by the quirk of the application of the Veterans’ Entitlements Act is, in fact, still considered to be operational service as far as Mr Summers is concerned. So the occurrence there – the question is, is that an occurrence that could trigger a post-traumatic stress disorder? --- It certainly could be, yes.

Yes. And, certainly, is an occurrence that could trigger an alcohol abuse problem as well? --- Possibly a stressor, possibly.

Right. Now---? --- But possible a sequelae.

Yes? --- That might be less robust than, for example, the causation of a post-traumatic stress.

Yes, right. All right. And now, you hold this opinion fairly, that he’s suffering from post-traumatic stress disorder and alcohol dependence? --- Yes.

34    This evidence – or, more accurately, the questions which elicited it – failed to observe the distinction which had been drawn by Dr Strauss between immediate psychological trauma resulting from the fall and subsequent psychological trauma resulting from the aftermath.

35    Dr Velakoulis was cross-examined extensively by counsel for the Commission. Much of this cross-examination was directed to suggesting that Mr Summers could not have been traumatised by an event which he could not remember. On re-examination counsel for Mr Summers elicited this further evidence:

Now, having sort of been found on the beach and taken into intensive care, what would be – when you woke up and you found yourself post-operation, what sort of – what psychological events could that cause to an individual? --- Well, he – given as well he had a head injury, he might be suffering what is called a delirium or a confusional state, where he might have difficulty with knowing his whereabouts or time of day. It might be associated with difficulty recalling events from around that period, and it might be associated with mood or anxiety-type symptoms.

Yes? --- But given that basically the – he’s had injury of his spleen and other abdominal injuries and also to his skull, it ends up being a difficult time for the brain to try to make sense of what might be happening, potentially.

Yes. Now, now that you know more specifically about the Watsons Bay incident, do you think it is an important factor in his post-traumatic stress disorder --- Look, I would suggest it’s – it may well be a very important factor.

And could such an injury trigger post-traumatic stress disorder? --- Yes.

36    The question first asked above did, it is true, connect with Dr Strauss’s observation that mental trauma resulting from the aftermath might theoretically be available. However, the answer given by the witness was not sufficient for that purpose. Following another round of cross-examination there then ensued yet further re-examination which marked the end-point for the present arguments:

Doctor, if we accept that the investigating officer’s report that the incident occurred, that the injuries were sustained and that Mr Summers was, indeed hospitalised for that period of time, what part does it play, do you think, in his post traumatic stress disorder given that it occurred immediately during the end of his service in Vietnam? --- Well, I think, as I stated before, it could be one – one aspect of an accumulated trauma load which might tip him over the edge in terms of symptom expression of PTSD. In addition to that, the causation of potentially causing PTSD he may – and it’s very hard to know in retrospect, but he may have suffered a confusional delirium state afterwards. But, yes, that’s hard for me to know.

Would you need to, perhaps, speak to him again? --- I think if you took a further history it might give you some insight into his mental state in the – in the time that he was in hospital. Yes, it might give you a rough idea. I mean, if, for example, he – I mean, this is just a hypothetical, but if a patient says “I was in hospital and I thought that snakes were crawling out of the cupboards and that the nurses were out to kill me”, that might indicate a delirium with paranoia, for example.

Yes, right, thank you for that.

(Emphasis added.)

37    At this point evidence of an expert kind had been elicited which suggested that it was possible that the psychological trauma might have been suffered in the aftermath. The difficulty with that case was, as Dr Velakoulis pointed out in the passage above, that there was no history from Mr Summers which supported it. Such a history had plainly not been given to Dr Velakoulis and it was this which gave rise to his suggestion that Mr Summers might need to be spoken to again. More importantly, and as already noted, there had been a concomitant failure to elicit before the Tribunal any evidence from Mr Summers about feelings of fear, helplessness or horror either at the time of the fall or afterwards at the hospital. This was, in a sense, a fatal flaw in the PTSD case.

38    Counsel’s closing address to the Tribunal was not illuminating. It failed to distinguish between the two types of trauma; it failed to grasp that Dr Strauss’s evidence was not that there could be no PTSD if the trauma be forgotten but rather that, because Mr Summers could not remember the incident, as a matter of fact, he did not think that a trauma had been suffered; most importantly it skated over the absence of any evidence from Mr Summers about his feelings of fear, helplessness or horror. The short submission which was made was thus:

Now, that brawl occurred during a period of time that confers on Mr Summers the beneficial proof of having to establish it on a reasonable hypothesis. And we can be convinced that it occurred, that he was hospitalised and that is a state of mind that he was in on the 10th day of his hospitalisation, still in intensive care, when he has been interviewed by the warrant officer and he doesn’t remember much about the incident. Dr Strauss, in his evidence, has conceded that the events in Sydney could be the catalyst for a post traumatic stress disorder. Now, he didn’t think that there was a reaction required because Mr Summers was unconscious when he was found and then hospitalised.

It’s up the tribunal to make an assessment on that but considering a person in hospital with severe injuries, a major operation having been performed – removing his spleen. And finding himself in that situation after the death of his father not very many days beforehand and attending his funeral. In my submission, the tribunal can find that it had an effect and indeed Dr Velakoulis who has been treating him since 2007, finds that it was a factor in the diagnosis of post traumatic stress disorder.

Now, I agree with my friend. You can criticise the lack of precision of that September attendance that he had with my client. It’s been difficult to – psychiatrists are very, very busy nowadays. It’s very difficult to get them focused on what is really a legal process when they’re interested in the psychological process of their clients, and that’s been the difficulty in this particular case. Obviously my temptation would be, from what happened today, to go back to Dr Velakoulis. We did ask for another report, and to obtain that report and bring it to the tribunal. That would be the ideal situation. But we’ve had that evidence, and the only other evidence that we’ve had was Dr Strauss, that says, “Yes, I can see that it could happen, but I don’t think it happened because he was unconscious.”

That’s the only really rider in terms of Dr Strauss, and the incident occurred, we say, on the balance of probabilities, looking at this in a pragmatic way, and given the circumstances of all of these accidents, the tribunal should be satisfied that, in fact the treating psychiatrist has got the right diagnosis of post-traumatic stress disorder, and that you do have those factors that clearly made a contribution to it. And it doesn’t have to be a large contribution. It’s a reasonable hypothesis case. As long as the event that’s being claimed occurred can be verified, and as long as we can verify that it played a part, that is all that is required under the legislation and the decisions of the court, and I’m referring to Law v Repatriation Commission, and the cases decided after that.

39    The reference to a reasonable hypothesis reveals a confusion on counsel’s part as to the forensic contest with which he was confronted. The language of reasonable hypothesis springs from s 120B but its elaborate machinery is directed to the question of whether an ailment – already proved to exist – is war-caused. In this case, Mr Summers was confronted with a more basic objection to his case, namely, that he was not suffering from the ailment of PTSD at all.

40    The Tribunal rejected Mr Summers’ case on PTSD, finding instead that he did not suffer from that condition. In relation to the fall down the cliff it reasoned this way:

[22]    In respect of the Watson’s Bay event the Tribunal takes into account that Mr Summers suffered life-threatening injuries and was not discovered until the day after his altercation with the sailors. The Tribunal accepts that the incident prevented Mr Summers from returning to Vietnam and had far-reaching consequences regarding his physical and psychological health. However Mr Summers admitted that he was intoxicated at the time and had no recollection of the incident itself, and only remembered the altercation at the hotel and its immediate aftermath when he said that the sailors followed him. Dr Velakoulis made no mention of the incident in his report, and only clarified the matter with Mr Summers on 1 September 2010, which was after the matter had been raised as a significant stressor by Mr Summers on the first day of the Tribunal hearing. Dr Debenham diagnosed PTSD but gave no reasons.

[23]    The only objective report of the incident was by an investigating officer shortly after the event. That officer referred to a fall over the cliff after wrestling and that the personnel involved were intoxicated. The Tribunal takes into account that Dr Pomorin referred to the incident as a fight but reported Mr Summers had not described any emotionally traumatic event. In all the circumstances the Tribunal concludes that the material supports Dr Strauss’ evidence that there is insufficient reliable information to substantiate the claim of risk of death or serious injury, particularly as Mr Summers had only a vague memory of events on the night in question and no recollection of any assault or accidental fall from the cliff. Therefore the Tribunal finds that the Watson’s Bay event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.

(Emphasis added.)

41    The Tribunal was required to determine in the first instance whether Mr Summers had, as a matter of fact, experienced any feelings of fear, helplessness or horror at all. There was no evidence from Mr Summers himself that he had and the evidence of Dr Strauss was that he was inclined to infer that the fact that Mr Summers could not recall the incident tended to suggest that he had not experienced such feelings.

42    In light of that it may be observed that, read literally, the manner in which the Tribunal dealt with this issue (in the italicised portion above) is, with respect, confused. It suggests that the risk of death or injury was not substantiated. One would have thought that falling down a cliff and suffering life threatening injuries – a matter which was not in dispute – was sufficient to make good that matter. The suggestion that Dr Strauss had said such a thing was also erroneous – his point was not that falling off a cliff was not life threatening but rather that he did not think that Mr Summers had suffered feelings of fear, helplessness or horror (otherwise he would remember the incident).

43    The strangeness, with respect, of the penultimate sentence of [23] needs to be seen in the context of the last sentence which is the Tribunal’s actual conclusion. There it found or assumed (contrary to the preceding sentence) that the fall had occurred but found that Mr Summers had not experienced a response involving fear, helplessness or horror.

44    In our opinion the better reading of [23] is that the Tribunal was directing itself to the question of whether Mr Summers had experienced the requisite response and the difficulties of the second last sentence do not reflect an underlying failure on the part of the Tribunal to pose for itself the correct question. We take that approach cognisant of the need not to approach the reasons of administrative tribunals with an eye closely attuned to the detection of error: cf. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J.

45    So viewed, the Tribunal’s conclusions on this issue were not only sustainable but, in view of the absence of any evidence from Mr Summers that he had experienced such a response to his fall down the cliff, inevitable.

46    What then of the case based on the aftermath at the hospital? There was undoubtedly an attempt to formulate before the Tribunal a case that Mr Summers had suffered the requisite response at that time. There is, however, simply no treatment of this issue in the Tribunal’s reasons. A failure to deal with a properly formulated argument presented for its determination can amount to a breach of the rules of procedural fairness: “To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to afford Mr Dranichnikov natural justice”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 at 326 [24] and 340 [95]; applied in Plaintiff M61/2010E v Commonwealth (2010 243 CLR 319 at [90]. The difficulty is that the manner in which this entire issue was addressed by counsel for Mr Summers was very far from being able to be described as clear. Although we have sought to dissect with some care what took place before the Tribunal it has to be said that the submissions which were addressed to it on Mr Summers’ behalf failed to come to grips with the reasonably complicated issues which had arisen. We have set out the passages from counsel’s address above which are pertinent. It is quite likely that these did not amount to a sufficient flagging of the issue so as to require the Tribunal to deal with the issue.

47    It is not, however, necessary finally to determine that question. The Tribunal was under its own obligation to follow up and consider any case which might reasonably appear from the materials. This case – that is, the response of fear, helplessness and horror in the aftermath – was touched on in the evidence. The Tribunal ought to have looked at the issue in its reasons.

48    Had it done so, however, it would have found that the material before it did not include any evidence from Mr Summers that he had a response consisting of feelings of fear, helplessness or horror in the aftermath. On the evidence which was before it we do not see that the Tribunal could have arrived at a different conclusion even if it had considered the issue. The evidentiary footings for such a case had simply not been laid.

49    We conclude therefore that there was no material error by the Tribunal in reaching the conclusions it did on the issue of PTSD.

ALCOHOL DEPENDENCE

The Tribunal’s reasons

50    The Tribunal dealt with Mr Summers’ claim that his alcohol dependence was war-caused at [25]-[34] of its reasons. It is apparent from the Tribunal’s reference to “the diagnosed conditions” at [26] of its reasons that the Tribunal assumed that Mr Summers suffered from the diseases of both alcohol abuse and alcohol dependence. In fact, Mr Summers’ claim was for alcohol dependence and not alcohol abuse. The limitation of the claim to alcohol dependence reflects the structure of the applicable statements of principles, known as SoP No 1 of 2009 and SoP No 17 of 2008. As the Tribunal correctly recognised at [31] of its reasons, if Mr Summers did not satisfy the current SoP No 1 of 2009 the Tribunal was required to assess his claim by reference to SoP No 17 of 2008 as the SoP in force at the time his claim was made (Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194). In SoP No 1 of 2009 at cl 3(b) one of the diagnostic criteria for alcohol abuse is that the “symptoms have never met the criteria for alcohol dependence”. Clause 3(b) of SoP 17 of 2008 contained the same diagnostic criteria for alcohol abuse. In other words, for claims covered by these statements of principles, a person cannot suffer from the diseases of both alcohol dependence and alcohol abuse. The diagnostic criteria for alcohol abuse exclude alcohol dependence. This is important because it discloses the need to focus on the different diagnostic criteria for each disease. In the present case, the Tribunal did not refer to the diagnostic criteria of the different diseases of alcohol abuse and alcohol dependence, presumably because it was not in dispute that Mr Summers suffered from alcohol dependence and had done so for many years. However, as the Tribunal’s subsequent reasons disclose, the issue in the present case involved the temporal relationship between Mr Summers’ excessive alcohol consumption (to use a neutral phrase) and events alleged to be factors giving rise to a reasonable hypothesis connecting his excessive alcohol consumption to his operational service. In these circumstances the date of clinical onset of alcohol dependence, an element of each factor required to be connected to service, was thus critical to the Tribunal’s resolution of Mr Summers’ claim.

51    The Tribunal did not refer in its reasons to the different diagnostic criteria for alcohol abuse and alcohol dependence. The Tribunal discussed the material disclosing Mr Summers’ drinking habits. In particular, before he went to Vietnam Mr Summers was a light social drinker (at [27]). After he was in Vietnam in charge of the canteen he began to drink excessively because it was hot, he did not have to pay for the alcohol, and drinking helped him sleep. Because he was in sole charge of the canteen he was effectively “his own boss” and could drink whenever he wanted to. He spent every day operating the bar canteen and was soon drinking between 18 and 24 cans of full strength beer a day (at [27]). However, Mr Summers was in Vietnam for only three and a half months (between 24 June 1968 and 14 October 1968) when his father died and he was given compassionate leave to return to Australia for his father’s funeral (at [1] and [10]). After his father’s funeral and on the evening before he was meant to return to Vietnam Mr Summers was assaulted at Watson’s Bay (the Watson’s Bay event as discussed above). Mr Summers thus remained in Australia (at first in intensive care in hospital and thereafter at Victoria Barracks in Melbourne where he completed his National Service). Mr Summers continued to drink heavily although (unsurprisingly given that he no longer had access to free alcohol) his level of consumption decreased from what it had been in Vietnam (at [27]).

52    The Tribunal (at [31]) identified the factors that, in accordance with cl 6 of each SoP (No 1 of 2009 and No 17 of 2008), “must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service”. The factors (the same in each) included:

(a)    having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)    experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

(c)    experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

(d)    experiencing the death of a significant other within the two years before the clinical onset of alcohol dependence or alcohol abuse.

53    In cl 9 of each SoP there are definitions including the following:

"a category 1A stressor" means one or more of the following severe traumatic events:

(a)    experiencing a life-threatening event;

(b)    being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)    being threatened with a weapon, being held captive, being kidnapped, or being tortured;

"a category 1B stressor" means one of the following severe traumatic events:

(a)    being an eyewitness to a person being killed or critically injured;

(b)    viewing corpses or critically injured casualties as an eyewitness;

(c)    being an eyewitness to atrocities inflicted on another person or persons;

(d)    killing or maiming a person; or

(e)    being an eyewitness to or participating in, the clearance of critically injured casualties;

"a significant other" means a person who has a close family bond or a close personal relationship and is important or influential in one’s life;

54    The Tribunal then asked itself, as it was required to do, whether the applicable statements of principles upheld the hypothesis connecting Mr Summers’ disease of alcohol dependence with his operational service (it having been conceded before the Tribunal that Mr Summers remained on operational service during his compassionate leave in Australia). The Tribunal answered this question at [33] and [34] of its reasons as follows:

At this step the Tribunal is not making any findings of fact. In view of its finding that none of the four claimed stressful events constituted a traumatic event that evoked a response involving intense fear, helplessness or horror that would satisfy the criteria for a diagnosis of PTSD, the material does not point to the reasonable hypothesis linking Mr Summers’ alcohol dependence to his operational service with respect to factors 6(a), (b) and (c) of SoP Nº 1 of 2009, and also factors 6(a), (b) and (c) of SoP Nº 17 of 2008. With respect to factor 6(d) of SoP Nº 1 of 2009 and factor 6(d) of SoP Nº 17 of 2008 concerning the father’s death event, on all the material and without making any findings of fact on whether Mr Summers experienced the death of a significant other within the five years or two years before the clinical onset of alcohol dependence respectively, the circumstances are that he commenced drinking to excess while in Vietnam and after two [sic – three] and a half months his father died. There is no relationship between the factors and his operational service.

For these reasons the hypothesis does not fit the relevant SoPs, and Mr Summers does not satisfy the third step. Therefore the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Summers’ alcohol dependence and his operational service during the relevant period, and there is no sufficient ground for determining that Mr Summers’ alcohol dependence was war-caused.

55    It appears, accordingly, that the Tribunal reasoned that as Mr Summers had started drinking heavily in Vietnam the hypothesis of connection between two events which occurred while he was on operational service, the death of his father and the assault at Watson’s Bay, was not upheld by the applicable statements of principle which required the relevant event to occur before the clinical onset of alcohol dependence.

The primary judge’s reasons

56    The primary judge delivered his reasons for dismissing the appeal ex tempore on 8 November 2011 (the date of the hearing). In the reasons for judgment as published the primary judge referred to the arguments which had been put below about Mr Summers’ alcohol dependence, being the Tribunal’s alleged failure to consider the hypothesis connecting, first, alcohol dependence to the death of his father (at [21]) and, second, aggravation of alcohol dependence to death of his father (at [22]). In resolving those arguments the primary judge dealt with the second claim at [33] and [34] of the reasons as published in these terms:

33 The final ground is based on the argument that the Tribunal failed to address whether the notification of the death of the applicant’s father was a factor that aggravated his alcohol dependence. A claim on this basis would be contemplated by [6(j)] of the Statement of Principles. The Tribunal does not indicate that such a claim was made. Mr De Marchi does not assert that it was made. It can hardly be an error on the part of the Tribunal to fail to deal with a claim which was not made. Although the process before the Tribunal is inquisitorial, it is necessary to take a realistic view about the matters which were in issue.

34 The applicant was legally represented at the Tribunal hearing by Mr De Marchi. There is no evidence to which Mr De Marchi could point which would establish the necessary facts upon which a submission could be made that the alcohol dependence was aggravated by the notification of the death of the applicant’s father. Mr De Marchi pointed to a couple of random references which amounted to little more than showing that the applicant had a close relationship with his father as well as some evidence from the applicant’s wife to the effect that the applicant turned up to his father’s funeral in a highly intoxicated condition. Even if the applicant had made the claim before the Tribunal that notification of his father’s death had aggravated his alcohol dependence, these pieces of evidence could not have supported it. Consequently, this ground is also not substantiated. For those reasons the appeal must be dismissed.

57    Counsel for the respondent apparently pointed out to the primary judge that his ex tempore reasons did not deal with the first aspect of the argument about alcohol dependence. On 9 January 2012 the primary judge published a corrigendum to the reasons inserting an additional paragraph as [33], with the subsequent paragraphs being re-numbered accordingly. The new [33] is as follows:

33 The fifth complaint is that the Tribunal failed to identify the death of the applicant’s father as a reasonable hypothesis to link the applicant’s service to his alcohol dependence. The basis upon which the Tribunal dealt with this contention depended on the terms of the relevant Statement of Principles. The reason why the notification of the death could not provide a reasonable hypothesis was derived from the terms of paragraph 6(d) of the relevant Statement of Principles which require that the experience of the death of a significant other precede the clinical onset of alcohol dependence or alcohol abuse. The Tribunal found as a fact that the applicant’s alcohol dependence commenced in Vietnam when he was operating the Other Ranks canteen. The death of the applicant’s father occurred a number of months afterwards. It was therefore impossible for the reasonable hypothesis to be established upon those facts.

The appeal to the Full Court

58    In ground 3 of the notice of appeal to this court it is contended that the primary judge misdirected himself by not holding that the Tribunal erred “in failing to identify all of the hypotheses that were raised on the material before it, and in particular, the hypothesis which connected the veteran’s service with the aggravation of the veteran’s alcohol dependence following his father’s death”. One of the hypotheses that was said to have been raised before the primary judge, of course, was that Mr Summers’ alcohol dependence was caused by his father’s death. It may be that the notice of appeal does not expressly refer to this hypothesis because the notice was filed on 29 November 2011 before the publication of the corrigendum in which the primary judge rejected this argument. Whether that is so or not, it is encompassed by ground 3 of the notice of appeal in this court and was raised in the supplementary notice of appeal before the primary judge in ground 4.5. As the primary judge also identified at [17] the “notice of appeal is not very instructive as to the questions of law upon which the applicant relies. Indeed, the respondent has challenged the competency of the appeal on the basis that many of the grounds raise questions of fact, not law”. This led the primary judge at [18] to conclude that it “serves the interests of justice best in this case to seek to extract from the not always clear written submissions the essence of the grounds of appeal upon which the applicant seeks to rely”.

59    We are confronted by the same problems which beset the primary judge. For example, although ground 4.5 of the supplementary notice of appeal before the primary judge refers to the Tribunal failing to consider properly the applicable statements of principles concerning alcohol dependence in terms of the conditions of service including the death of Mr Summers’ father whilst he was on service, there is no corresponding question of law about this issue (as all of the so-called questions of law concern aggravation of alcohol dependence). It is trite that the jurisdiction of the court depends on the existence of a question of law (see, for example, Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232). As the notices of appeal relating to this matter disclose identifying such a question is not straightforward. If a question of law on which the Tribunal’s decision depends exists it would be unjust to hold an appeal incompetent merely because the appellant in the particular case is unable to articulate a question of law. We thus agree with the approach the primary judge took.

60    It might also reasonably be inferred that the Tribunal was confronted with a lack of clarity in the case put for Mr Summers. For example, and as the primary judge noted, although the issue of aggravation of alcohol dependence was raised in the appeal it appears not to have been raised before the Tribunal. The complex interaction of the provisions of the statute vest in the Tribunal a complicated task, the complexity no doubt being compounded by any lack of clarity in an applicant’s case. Be that as it may the Tribunal’s function remains an inquisitorial one and it is bound to determine an applicant’s claim on the material before it and “in doing so, is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by an applicant” (Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629 at [18]). Equally “that [the] error of law was not raised previously does not preclude the appellant from raising it on appeal provided the respondent has been afforded an opportunity to be heard on the issue” (Grant v Repatriation Commission at [20]).

61    The concern we hold, and in respect of which we invited further submissions from both parties, is this. Mr Summers claimed that his alcohol dependence was war-caused. There was no dispute that, at the time of his claim and its resolution, he suffered from the disease of alcohol dependence. In accordance with the applicable statement of principles (SoP 1 of 2009, cl 3(b)) he thus suffered from:

…a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1)    Tolerance, as defined by either of the following:

(a)    a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or

(b)    markedly diminished effect with continued use of the same amount of the alcohol.

(2)    Withdrawal, as manifested by either of the following:

(a)    the characteristic withdrawal syndrome for the alcohol; or

(b)    the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.

(3)    The alcohol is often taken in larger amounts or over a longer period than was intended.

(4)    There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.

(5)    A great deal of time is spent in activities necessary to obtain the alcohol (e.g., visiting multiple doctors or driving long distances), use the alcohol or recover from its effects.

(6)    Important social, occupational, or recreational activities are given up or reduced because of alcohol use.

(7)    The alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).

62    By cl 5 of SoP 1 of 2009 “at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person”. Clause 6(a) to (d) is set out above. Section 196B(14) of the Act specifies that a factor causing or contributing to an injury, disease or death is related to service rendered by a person if, relevantly:

(a)    it resulted from an occurrence that happened while the person was rendering that service; or

(b)    it arose out of, or was attributable to, that service; or

(c)    it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:

(i)    to a place for the purpose of performing duty; or

(ii)    away from a place of duty upon having ceased to perform duty; or

63    As noted, the respondent did not contend before the Tribunal or on appeal that Mr Summers was not rendering operational service while on leave. It followed that one critical question for the Tribunal was whether the material pointed to Mr Summers having experienced the relevant class of stressor (in this case, only a category 1A stressor was raised on the material) or experienced the death of a significant other within the five years before the clinical onset of alcohol dependence. Another critical question was whether either was “related to service” as defined by s 196B(14) of the Act because cl 5 of SoP No 1 of 2009 provided that at least one of the factors in cl 6 must be related to the person’s service.

64    As to the first issue of clinical onset, the primary judge concluded in the corrigendum that the Tribunal “found as a fact that the applicant’s alcohol dependence commenced in Vietnam” three and a half months before his father’s death (and the assault at Watson’s Bay). When [33] and [34] of the Tribunal’s reasons are read a whole it may be accepted that the primary judge correctly inferred that the Tribunal so found. The Tribunal did so on the basis of one fact that it found (and which was not in dispute on the evidence), namely, that Mr Summers began drinking heavily soon after arriving in Vietnam. The difficulty, however, is that drinking heavily or to excess is indicative of not only alcohol dependence but also alcohol abuse. Clause 3 of SoP No 1 of 2009 provides that:

"alcohol abuse" means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):

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

(1)    Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).

(2)    Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).

(3)    Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).

(4)    Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).

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

65    Clause 3 of SoP No 1 of 2009 also provides that:

The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.

66    There is no indication in the Tribunal’s reasons that it considered the different diagnostic criteria for alcohol abuse and alcohol dependence. The fact that Mr Summers drank excessively in Vietnam is not, of itself, indicative of the clinical onset of alcohol dependence. As far as can be ascertained there was no material before the Tribunal which pointed to Mr Summers, whilst in Vietnam, having “clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period”, the following being the criteria for alcohol dependence specified in items (1) to (7) of cl 3 of SoP No 1 of 2009. He drank heavily over the period of three and a half months and thus the material pointed to tolerance as set out in item (1) and greater consumption than intended in item (3) but that seems to be all. Moreover, although Dr Strauss, a consultant psychiatrist, said that Mr Summers’ alcohol dependence began while he was in Vietnam he gave this evidence when the specific question of clinical onset of alcohol abuse or alcohol dependence was raised (the only expert evidence which seems directly to have dealt with this issue):

All right. Now, you mentioned that initially you diagnosed alcohol dependence?---Abuse.

Abuse. Now you say it’s dependence, right. Now, which comes first?---Well, abuse.

Right. So would you say that he was abusing alcohol in Vietnam?---Yes.

When does it become dependence?---I can’t say when but, I mean, he’s been dependent on alcohol for many years, in my opinion.

67    In addition, Dr Velakoulis gave evidence that alcohol dependence involves a pathological process over a 12 month period with various symptoms, saying that alcohol dependence is “a maladaptive cluster of symptoms occurring over a 12 month period” so that he supposed such a diagnosis (that is, of alcohol dependence) could be made only after 12 months.

68    This material thus pointed to the clinical onset of alcohol abuse in Vietnam (where Mr Summers was stationed for 3 months) and alcohol dependence thereafter. The Tribunal, however, seems to have taken the evidence about Mr Summers’ undoubted heavy drinking in Vietnam as evidence of the clinical onset of alcohol dependence in Vietnam in circumstances where: – (i) heavy drinking is equally indicative of alcohol abuse, (ii) Mr Summers was in Vietnam for three and a half months only when the requirement for alcohol dependence is three of the criteria “occurring at any time in the same 12-month period”, and (iii) the Tribunal did not consider any of the other criteria for alcohol dependence as set out in cl 3 of the SoP No 1 of 2009. The Tribunal did not reject Dr Strauss’s evidence about clinical onset or Dr Velakoulis’s evidence about alcohol dependence being diagnosed if symptoms have existed for 12 months. Accordingly, on the material, a case was raised that the clinical onset of alcohol dependence occurred after Mr Summers returned to Australia and that Mr Summers experienced the death of a significant other (his father) and a category 1A stressor (the Watson’s Bay assault and/or the fall from the cliff) within the five years before clinical onset of his alcohol dependence.

69    The first issue, the death of Mr Summers’ father, founders on the requirement in cl 5 of SoP No 1 of 2009 (and also cl 5 of SoP No 17 of 2008) because the factor must be related to service. It was submitted for Mr Summers that s 196B(14)(a) was satisfied because Mr Summers was on service in Vietnam when his father died. The problem with this argument is that the section does not refer merely to “an occurrence that happened while the person was rendering that service”. It refers to a factor (in this case the factor in cl 6(d) of each SoP) which “resulted from an occurrence that happened while the person was rendering that service”. The death of Mr Summers’ father did not result from anything that happened to Mr Summers while he was on service. It was unconnected to Mr Summers’ service. The fact that it happened while Mr Summers was on service does not satisfy s 196B(14)(a) of the Act (and see, by analogy, the reasoning of the Full Court on the equivalent provision of s 9(1)(a) of the Act in Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 at [82]-[84]). To be related to service his father’s death had to result from “an occurrence that happened” while Mr Summers was on service. The result the Tribunal reached in respect of this aspect of Mr Summers’ claim, accordingly, was necessarily correct (albeit not for the reasons the Tribunal gave).

70    The second issue, the Watson’s Bay assault, involves different considerations. The Tribunal’s reasons at [33] disclose that it equated the meaning of a category 1A stressor to the meaning of a traumatic event as set out in the statements of principles relevant to PTSD (as discussed above). The problem is that the definitions are different. The definition of a traumatic event involves both an event and a response to the event. The definition of a category 1A stressor says nothing about a required response. It refers only to:

…one or more of the following severe traumatic events:

(a)    experiencing a life-threatening event;

(b)    being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)    being threatened with a weapon, being held captive, being kidnapped, or being tortured;

71    The error in the Tribunal’s approach is disclosed in the second sentence of [33] of its reasons where the Tribunal said “[i]n view of its finding that none of the four claimed stressful events constituted a traumatic event that evoked a response involving intense fear, helplessness or horror that would satisfy the criteria for a diagnosis of PTSD, the material does not point to the reasonable hypothesis linking Mr Summers’ alcohol dependence to his operational service with respect to factors 6(a), (b) and (c) of SoP Nº 1 of 2009, and also factors 6(a), (b) and (c) of SoP Nº 17 of 2008”. Mr Summers’ response (or lack of response) to his assault in Watson’s Bay was irrelevant to the question whether he experienced a category 1A stressor.

72    Nor can it be said that the fact that Mr Summers did not recall actually falling down the cliff at Watson’s Bay and landing on a ledge from which he might have been swept out to sea had he not been found before the tide came in the following morning meant that he did not “experience” a category 1A stressor within the meaning of cl 6(b) of SoP No 1 of 2009. Insofar as this might have been suggested, it involves a misunderstanding of the decisions in Woodward v Repatriation Commission and Repatriation Commission v Stoddart (2003) 134 FCR 392; [2003] FCAFC 300.

73    In Woodward v Repatriation Commission the decision of the Tribunal under appeal concerned the question whether the applicant had experienced a severe stressor. The Tribunal had construed “experience” to mean “present at, observed, encountered, or been faced with” the event (at [108]). The Tribunal rejected the applicant’s claim because it found that preparing reports concerning the death of two men and packing one of the men’s possessions for return to his family did not involve the applicant in experiencing, witnessing or confronting events involving death or serious injury (as the relevant definition required). The Full Court held that approach was too narrow. The Court said that “a person may be “confronted with” an event that he or she has neither experienced nor witnessed” (at [122]). At [123] the Court said “[i]n 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”. The applicant thus confronted an event involving death even though he did not experience or witness the event “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” (at [128]). In Repatriation Commission v Stoddart the issue was simply the existence of “an event or events that involved actual or threat of death or serious injury” as required by the applicable statement of principle in that case. Neither decision is authority for the proposition that a person does not “experience” an event merely because they are rendered unconscious by the event.

74    Accordingly, although Mr Summers did not witness his own fall from the cliff (as he was unconscious at the time or was rendered unconscious when he landed on the ledge, has no recollection of the fall and only a vague recollection of the assault which preceded it) he undoubtedly experienced a life-threatening event as referred to in para (a) and, indeed, was subjected to a serious physical attack or assault as referred to in para (b) of the definition of “a category 1A stressor” in SoP No 1 of 2009. The material also pointed to the life-threatening event having resulted from an occurrence that happened while Mr Summers was rendering service. The occurrence was the assault on Mr Summers while he was on operational service as a result of which it appears he either fell or was pushed over the cliff. On this basis, if dealt with as required, the material would have pointed to satisfaction of the related to service requirement. It is also possible that the fall from the cliff was an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty. Mr Summers was to travel to Australia from Vietnam and from Australia to Vietnam on compassionate leave as part of his operational service. His fall from the cliff, however precipitated, was an accident. He was not in the course of duty but he was on a journey back to his base in Sydney which formed part of his larger journey from Melbourne, where he had attended his father’s funeral, to Sydney where he was scheduled for embarkation to Vietnam. It is further possible that the serious physical attack or assault itself might be related to service if it resulted from an occurrence that happened during service (this is not readily apparent from the material as it seems Mr Summers was simply walking back to base from the pub and the assault did not result from any occurrence during his service). The Tribunal did not consider these possible hypotheses because it misdirected itself at the first step in the inquiry by equating the definitions of category 1A stressor in the SoP for alcohol abuse and alcohol dependence and traumatic event in the SoP for PTSD (SoP No 5 of 2008).

75    It follows that the material raised a hypothesis which, if found, was capable of leading to Mr Summers’ claim for war-caused alcohol dependence being allowed. The material raised a case that the clinical onset of alcohol dependence (as opposed to alcohol abuse) occurred after Mr Summers returned to Australia and that Mr Summers experienced a category 1A stressor related to his service (the fall from the cliff caused by the occurrence of the Watson’s Bay assault and/or the Watson’s Bay assault itself) within the five years before clinical onset of his alcohol dependence.

76    The Tribunal thus affirmed the decision under review rejecting Mr Summers’ claim for war-caused alcohol dependence on bases which were erroneous law, including: – (i) failing to consider the diagnostic criteria for alcohol dependence as required by the applicable statement of principles, SoP No 1 of 2009, and thereby failing to determine as required by law whether the material pointed to the date of clinical onset of alcohol dependence (as opposed to alcohol abuse) after Mr Summers’ return to Australia, and (ii) taking into account an irrelevant consideration, being Mr Summers’ response to the Watson’s Bay assault and fall from the cliff, in determining whether he had experienced a category 1A stressor by reason of either or both his fall from the cliff and the preceding assault at Watson’s Bay. Both give rise to questions of law (capable of being expressed in many ways) on which the decision of the Tribunal depended.

77    For these reasons it is apparent that the appeal must be allowed insofar as it deals with the primary judge’s rejection of the grounds relating to Mr Summers’ alcohol dependence.

Relief

78    The Tribunal’s decision in relation to alcohol dependence was a decision to affirm the Board’s decision of 21 April 2009 affirming the Commission’s decision refusing PTSD and alcohol dependence. The setting aside of that decision will leave both the PTSD and alcohol dependence issues outstanding. It would be possible to confine the scope of any remitter to the alcohol dependence issue alone on the basis of our conclusion that no coherent PTSD case was run before the Tribunal. We are not, however, satisfied that this would necessarily result in a just outcome. In particular, the Tribunal’s acceptance that Mr Summers suffered PTSD which was not war-caused and that this was one of the reasons he could not work more than eight hours per week sits uncomfortably with its conclusion that he did not suffer from PTSD at all. Accordingly, the remitter will not be so limited. It will follow from what we have said that the Tribunal’s decision to affirm the Board’s decision to maintain the pension at the 100% rate must also be set aside. Although Mr Summers has succeeded that success is unrelated to the submissions which were made on his behalf which were of no assistance to the Court. In those circumstances, there should be no order as to costs whether in this Court or below.

79    The appropriate orders are:

1.    The appeal be allowed.

2.    Set aside the orders of North J of 8 November 2011 and in lieu thereof order that:

1.    The order of the Tribunal dated 20 October 2010 affirming the decisions of the Veterans Review Board of 21 April 2009 in applications V07/0174 and V08/0307 be set aside.

2.    The matter be remitted to the Tribunal for determination according to law.

3.    There be no order as to costs of the trial.

3.    There be no order as to the costs of the appeal.

Associate:

Dated:    31 July 2012