FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Bawden [2012] FCAFC 176

THE COURT ORDERS THAT:

1.    The appeal be allowed and the orders of the primary judge made on 5 April 2012 be set aside;

2.    That part of the decision of the Tribunal dated 2 May 2011 that the respondent does not suffer from PTSD as defined in the DSM-IV be affirmed;

3.    That part of the decision of the Tribunal which found that the respondent does not suffer from war-caused alcohol dependence and war-caused depressive disorder be set aside;

4.    The matter be remitted to the Tribunal for determination of the question whether the respondent suffers from a war-caused disease other than PTSD as defined in the DSM-IV;

5.    There be no order as to the costs of the appeal to this Court.

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

REASONS FOR JUDGMENT

1    The operation of the provisions of the Veterans’ Entitlements Act 1986 (Cth) (the Act) which govern the assessment of claims by veterans for a pension for war-caused incapacity has been a vexed question. Of particular concern, are the provisions of the Act which relate to the onus of proof of elements of the entitlement to a pension. These provisions have been held to require the veteran to establish his or her “incapacity … from injury or disease” to the reasonable satisfaction of the Repatriation Commission (the Commission) while also requiring the hypothesis that such injury or disease was “war-caused” to be negatived “beyond reasonable doubt”.

2    The difficulty presented by the present case arises because Mr Bawden, the respondent to this appeal, made a claim in respect of incapacity from post-traumatic stress disorder (PTSD), the diagnosis of which includes the occurrence of a traumatic event. The only traumatic event propounded by Mr Bawden in support of his claim was an incident which each of the Commission, the Veterans’ Review Board and the Administrative Appeals Tribunal (the Tribunal) was not satisfied was a traumatic event. On that footing, Mr Bawden’s claim for incapacity from PTSD was refused by each of these decision-makers.

3    The learned primary judge, on appeal from the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), held that the Tribunal erred in law in its approach to the decision-making process. His Honour considered that the Tribunal should not have proceeded to a conclusion that it was not satisfied that the traumatic event identified by Mr Bawden occurred because the question whether the traumatic event occurred was concerned, not with the diagnosis of an illness or disease, but with the causal nexus between the injury or disease and war service. His Honour ordered that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal to be heard and decided again.

4    It should be noted that his Honour also concluded that the decision of the Tribunal involved an error of law in its approach to the determination of whether there was a causal relationship between Mr Bawden’s operational service and his psychological conditions other than PTSD. These conditions were alcohol abuse or alcohol dependence and depressive disorder. The Commission accepts that this aspect of his Honour’s decision is correct, but appeals against his Honour’s orders to the extent that they include the setting aside of the Tribunal’s decision that it was not satisfied that Mr Bawden suffers from PTSD. The Commission submits that the matter should be remitted to the Tribunal for determination of the question whether Mr Bawden suffers from incapacity from a war-caused injury or disease other than PTSD.

5    We turn now to set out the factual and procedural background necessary to an appreciation of the arguments which bear upon the resolution of this matter.

BACKGROUND

6    Mr Bawden served in the Royal Australian Navy between 8 January 1964 and 7 January 1976. His service included nine voyages on HMAS Sydney to Vung Tau in Vietnam between 1967 and 1969. On one of these voyages, Mr Bawden witnessed the destruction of a sampan by a naval patrol boat in Vung Tau harbour on 1 June 1968.

7    On 12 April 2007, Mr Bawden lodged a claim pursuant to the Act, for a pension on the basis that he suffered from war-caused hearing loss, tinnitus, PTSD, alcohol dependence or alcohol abuse and depressive disorder. The traumatic event relied upon for the claim of PTSD was the witnessing of the destruction of the sampan.

8    On 20 August 2007, the Commission issued a determination accepting that Mr Bawden’s hearing loss and tinnitus were war-caused conditions. The Commission rejected his claims for PTSD, alcohol dependence or alcohol abuse and depressive disorder. The Commission granted Mr Bawden a disability pension at a rate which reflected these conclusions.

9    The Veterans’ Review Board and the Tribunal affirmed the Commission’s decision on the footing that it was not satisfied that Mr Bawden suffered from PTSD and that, while he did suffer from alcohol dependence or alcohol abuse and depressive disorder, these disorders were not war-caused.

10    On the footing that Mr Bawden had not shown that it was more probable than not that he had suffered the traumatic event, the Tribunal had no occasion to consider whether the alleged PTSD was war-caused.

11    Mr Bawden appealed against the Tribunal’s decision to a single judge of the Federal Court. As noted above, the primary judge held that the Tribunal erred in law.

12    It is convenient to set out the relevant provisions of the Act before summarising the reasons of the Tribunal and the primary judge’s reasons (Reasons). After doing that we will address the questions agitated by the parties in this Court.

STATUTORY FRAMEWORK

13    Section 13(1) of the Act provides that where a veteran has become incapacitated by a war-caused injury or a war-caused disease, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the veteran. By virtue of s 9(1), a disease is taken to be war-caused where the disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service or was attributable to eligible war service.

14    It may be noted here that it is common ground that Mr Bawden’s service on HMAS Sydney in Vung Tau constituted “operational service” for the purposes of the Act.

15    Section 14 of the Act provides the mechanism by which a veteran may make a claim for a pension. Section 16(a) provides that a claim is to be dealt with under s 120 of the Act.

16    Section 120 provides relevantly as follows:

(1)    Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

…

(3)    In applying subsection (1) … in respect of the incapacity of a person from injury or disease … 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]

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

…

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.

(4)    Except in making a determination to which subsection (1) … applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act … including the assessment or re-assessment of the rate of a pension granted under Part II … , decide the matter to its reasonable satisfaction.

(5)    Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a)    an injury suffered by a person is a war-caused injury …;

(b)    a disease contracted by a person is a war-caused disease …; [or]

…

(d)    a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6)    Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)    a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)    the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

17    The operation of s 120(3) is affected by s 120A(3) of the Act. Section 120A(3) of the Act, which applies to operational service, is as follows:

For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, [or] a disease contracted by 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) ...

…

that upholds the hypothesis.

18    Section 196A of the Act establishes the Repatriation Medical Authority (the Authority). Section 196B makes provision for the Authority to determine a Statement of Principles applicable to cases of operational war service and service other than operational service. The Statement of Principles is required to set out the factors that must be related to operational service rendered by a person if it is to be said that an injury, disease or death of a particular kind is connected with the circumstances of that service.

19    It is common ground that the Statement of Principles relevant to this appeal is Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008. Clause 3(b) of the Statement of Principles defines PTSD as a psychiatric condition meeting a number of diagnostic criteria, derived from DSM-IV-TR (the DSM-IV) which is defined in cl 9 to mean “the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000”. Criterion (A) of the diagnostic criteria for PTSD is that:

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[.]

20    Under cl 6, before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a person’s operational service, a person must have been:

(a)    experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or

(b)    experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder[.]

21    A category 1A stressor is relevantly defined by cl 9 as:

... 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[.]

22    A category 1B stressor is relevantly defined by cl 9 as:

... one or more 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[.]

THE DECISION OF THE TRIBUNAL

23    The Tribunal referred to the definition of PTSD in the DSM-IV which requires a traumatic event involving actual or threatened death or serious injury, or a threat to the physical integrity of self or others and a response of intense fear, helplessness or horror. The Tribunal proceeded on the footing that Mr Bawden bore the onus of establishing that a traumatic event had occurred. In taking this approach, the Tribunal relied upon the following passage from the reasons of Gray J in Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62 at [48]:

If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.

24    The only traumatic event advanced by Mr Bawden to support his claim of incapacity from PTSD was said to have occurred when he observed the naval patrol boat destroying the sampan. The Tribunal summarised Mr Bawden’s evidence about this event as follows at [9]:

He said that HMAS Sydney was at anchor in Vung Tau Harbour and he had completed his shift as a radio operator and was standing on the flight deck, when he heard a noise from a patrol boat sailing at speed towards the right side of the ship. Mr Bawden stated that the noise appeared to be instructions broadcast by loudspeaker. The patrol boat passed HMAS Sydney and emerged on the other side. He then noticed a sampan which appeared to be about 800 yards (about 730 metres) away. He did not see anyone on board the sampan, but then the patrol boat fired on the sampan, which exploded. He saw debris from the vessel in the water and watched as the patrol boat collected matter from the water, and he assumed this was bodies or body parts.

25    The Tribunal accepted that Mr Bawden had indeed witnessed the destruction of the sampan by the patrol boat, and that he may have been apprehensive for his safety when he first observed the patrol boat. However, it concluded that this apprehension dissipated soon afterwards when Mr Bawden realised that the patrol boat was not an enemy vessel. The Tribunal concluded that Mr Bawden did not experience or witness, and was not confronted with, an event involving actual or threatened death or serious injury to himself, or a threat to his physical integrity.

26    The Tribunal, not being satisfied that Mr Bawden suffered from PTSD, held that it was unnecessary to determine whether the condition propounded by Mr Bawden was war-caused.

THE DECISION OF THE PRIMARY JUDGE

27    The right of appeal from the Tribunal to the Federal Court provided by s 44 of the AAT Act is limited to a question of law.

28    The important steps in the primary judge’s reasoning appear from paras [19], [20] and [23]:

[19]    The important point is that the determination of whether there is a disease in a case such as the present is separate from the process of determining whether there is a causal connection between such a disease and the war service of the veteran, and subject to a different process of reasoning involving a different standard of satisfaction.

[20]    Problems have arisen in cases in which the diagnostic criteria applied by decision-makers in determining whether the veteran has a disease involve reference to particular causes of such a disease. Should the decision-maker, as part of the diagnosis process, determine on the balance of probabilities whether the causal event occurred, or should that determination be left to the four-step process set out in Deledio? I discussed this issue at length in Mines v Repatriation Commission [2004] FCA 1331 (2004) 86 ALD 62 at [37]-[50]. Following what was said by the Full Court in Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200 at [19], I concluded that a veteran is entitled to have the causal aspect of a claim for PTSD dealt with in accordance with the four-step process. Such a claim is not to be precluded by a finding that the decision-maker is not satisfied on the balance of probabilities that the traumatic event in question occurred, made at the initial stage of diagnosis.

…

[23]    The proper approach of the decision-maker therefore, is to examine a claim for PTSD (or any other condition for which causation is said to be part of the diagnosis) without determining conclusively whether the alleged causal event occurred. The correct approach is the one taken in Budworth, examining the collection of symptoms and determining whether they constitute a disease for the purposes of entitling a veteran to a pension under the Veterans’ Entitlements Act. The question of the aetiology of the disease should be left to the four-step process in accordance with ss 120(3) and 120A(3) of the Veterans’ Entitlements Act.

29    The primary judge concluded that the Tribunal erred in law in determining, on the balance of probabilities, whether the traumatic event on which Mr Bawden relied to advance his case of PTSD had occurred.

30    His Honour gave two reasons for taking his approach. First, the underlying policy of s 120 of the Act is that the standard of satisfaction for determining whether there is a causal connection between a disease and the veteran’s war service differs between service that is operational and service that is not. A veteran who has rendered operational service is entitled to succeed in his or her claim unless the decision-maker is satisfied beyond reasonable doubt that the causal connection does not exist. A veteran who has rendered war service that is not operational service, however, is entitled to succeed only if the decision-maker is satisfied on the balance of probabilities that the alleged causal connection does exist. If the determination as to whether a particular traumatic event occurred were to be transferred to the step of determining causation from the step of diagnosing the veteran’s condition, then the issue of causation for a veteran who has rendered operational service would be addressed no differently from a veteran who has not rendered operational service.

31    Secondly, the primary judge considered that determining causation as part of the diagnosis would lead to anomalies. His Honour said at Reasons [22]:

For instance, a veteran with symptoms amounting to PTSD, possibly caused by one of two traumatic events, one associated with the veterans’ operational service and the other not, would be in a better position than a veteran with symptoms amounting to PTSD who points only to one alleged traumatic event as the cause. The decision-maker might find on the balance of probabilities that the former veteran was suffering PTSD, without making a finding as to which of the two traumatic events was the actual cause, but might find on the balance of probabilities that the latter veteran did not suffer from PTSD. The former veteran would then be entitled to have the question of causation (ie which of the two traumatic events was to be regarded as the actual cause) determined by the four-step process in accordance with ss 120(3) and 120A(3) of the Veterans’ Entitlements Act. The latter veteran would have been denied access to that process.

THE ARGUMENTS IN THIS COURT

32    The Commission submits that the diagnostic criteria for PTSD require a decision-maker to make a finding as to whether, on the balance of probabilities, the traumatic event and response occurred. It is said that the primary judge’s approach is contrary to the text of the Act and to the settled course of authority which requires a decision on diagnosis of an alleged injury or disease to be made by reference to s 120(4) of the Act. Under s 120(4), the burden of proof is on the veteran and the standard of proof is the reasonable satisfaction of the decision-maker. This approach is said to be supported by the decisions in Repatriation Commission v Cooke (1998) 90 FCR 307 at 310 (Cooke); Repatriation Commission v Budworth (2001) 116 FCR 200 at [15] (Budworth) and Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [54] (Benjamin).

33    On Mr Bawden’s behalf, it is submitted that the Tribunal was obliged to determine the claim in relation to Mr Bawden’s PTSD symptoms regardless of whether the Commission is satisfied on the balance of probabilities that Mr Bawden suffered a traumatic event involving the destruction of the sampan.

34    Mr Bawden has also filed a notice of contention which seeks to uphold the primary judge’s decision on the basis that the Tribunal erred in law in failing to determine Mr Bawden’s claim on a proper understanding of the claim.

CONSIDERATION

35    The text of s 120(1) of the Act has been authoritatively interpreted as assuming the existence of “incapacity from injury or disease” as a matter of established fact rather than as a matter of claim by the veteran. There is contextual support for that interpretation in s 120(3) of the Act which is expressly concerned only with the issue of causal nexus between incapacity from injury or disease and operational service leaving the issue as to the fact of incapacity from injury or disease to be resolved in accordance with the provisions of s 120(4) of the Act. The provisions of ss 196B(2), 120A(3) and 120A(4) also suggest that the Statement of Principles exists exclusively for the purposes of determining causation at the second stage of the enquiry with the first stage of the enquiry being governed by s 120(4) of the Act. That is the view which has prevailed as a matter of judicial decision.

36    In Repatriation Commission v Budworth [2001] FCA 0317; (2001) 63 ALD 422, Madgwick J at first instance, concluded at [40] that where the decision-maker is obliged to look to the issue of causation to determine whether the diagnosis is correct, the decision-maker must apply the reverse criminal standard in s 120(1). His Honour said:

[40] In my opinion, what the tribunal did was to refuse the claim on the basis of, as it were, a “rolled-up” issue of causation, in that the tribunal found that nothing that the applicant experienced while on service would give rise to PTSD and therefore that he did not suffer that particular disease. The only stressors said to give rise to PTSD were alleged war-related events. In such a circumstance, where a decision-maker under the Act is actually obliged to look to the issue of causation to determine whether the diagnosis is correct, there is, as I have indicated, much to be said for the view that it must apply the reverse criminal standard.

37    This approach was expressly rejected by Whitlam J at first instance in Benjamin v Repatriation Commission [2001] FCA 522; (2001) 64 ALD 411 at [24], subsequently by the Full Court in Budworth (2001) 16 FCR 200 and then by the Full Court in Benjamin [2001] FCA 1879; (2001) 70 ALD 622, following the Full Court in Budworth (2001) 116 FCR 200.

38    The Full Court in Budworth at [17] and [20] said of Madgwick J’s reasoning:

[17] … [W]e are unable to accept that the differentiation between the application of the burden and standard of proof identified in subss (1), (2) and (3) of s 120 on the one hand and those indicated in subs (4) thereof on the other is to be qualified in the way which the primary judge outlined in [11]–[12] above. In that regard, we respectfully adopt this dictum of Whitlam J in Benjamin v Repatriation Commission (2001) 64 ALD 411 at 417, [24], as follows:

In Cooke the Full Court said (at 310) that s 120(1) and (3) of the Act assume the present existence of the relevant disease. This must, as the Full Court had earlier indicated (at FCR 308; ALD 2; ALR 18), be a claimed disease. With respect, I do not agree with the views about the ratio in Cooke adopted in Budworth v Repatriation Commission (2001) 63 ALD 422 and Meehan v Repatriation Commission (2001) 64 ALD 366, which do not refer to the “narrow issue of law” so identified by the Full Court. In my opinion, it should be borne in mind that a claim for a pension under Part II of the Act is required by s 14(5) to be made in respect of incapacity from “a particular injury or disease”. That means for present purposes that it is first necessary to determine whether the veteran contracted the disease “as claimed”. That important qualification is acknowledged in the language of s 19(7)(a) of the Act.

[20] … We regard Cooke as decisive of the critical issue on this appeal, namely what standard of proof is to be applied when determining whether a claimed injury or disease exists. Consequently we consider that the primary judge erred in concluding that the reverse criminal standard of proof contained in s 120(1) of the Act was relevantly applicable...

39    This resolution of the issue of interpretation is also supported by the decision of the Full Court in Benjamin where the Full Court said at 634 of the diagnosis stage of a PTSD claim:

[55] The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP[sic] in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP[sic] in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP[sic] is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.

40    In our respectful opinion, the effect of the settled course of judicial authority is that a veteran is entitled to have that aspect of a claim for PTSD concerned with whether it was war-caused dealt with in accordance with the four-step process explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) only if it is established on the balance of probabilities that the veteran does in fact suffer from incapacity from that injury or disease: Budworth (2001) 116 FCR 200 at [19].

41    In Deledio at 97-98, the Full Court said as follows:

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[sic] 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[sic] is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4.    The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

42    The four step process adumbrated in Deledio is established by ss 120(3), 120A(3), 120B(3) and 196(B)(2) and (3) of the Act. That process is concerned with the issue whether incapacity from a disease or injury found to exist is war-caused: it is not concerned with the issue whether the disease or injury occurred. This anterior question is governed by s 120(4) of the Act. The obligation of the decision-maker was to determine Mr Bawden’s claim by reference to an allegation of PTSD. Diagnosis is a process which necessarily involves examining a collection of symptoms in order to identify a disease in accordance with diagnostic criteria. The Tribunal, guided by the relevant diagnostic criteria set out in the DSM-IV, rejected a diagnosis of PTSD because it was not reasonably satisfied as a matter of fact that Mr Bawden had been exposed to a traumatic event.

43    A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “reasonable satisfaction” set by s 120(4), they constitute a disease for the purposes of entitling a veteran to a pension. The decision-maker’s second task is to determine the aetiology of the disease by applying the Deledio process, which involves ascertaining whether there is a hypothesis, testing that hypothesis against the relevant Statement of Principles and turning to the facts to determine whether that hypothesis is excluded beyond reasonable doubt.

44    It may be accepted that, while a veteran must establish on the balance of probabilities that he or she suffers from “incapacity from injury or disease”, the veteran is not obliged to attach a label to the injury or the disease from which the claimed incapacity is alleged to result. That having been said, where the disease propounded by the veteran as the cause of his or her incapacity is asserted to be PTSD, the issue arising from that assertion falls to be determined under s 120(4) of the Act because it is not a determination to which s 120(1) applies. That is because a traumatic event is necessary for a diagnosis of PTSD at a medical level. In Repatriation Commission v Warren [2007] FCA 866; (2007) 95 ALD 606 at [24]-[25], Kiefel J explained the two-stage process, and the legitimate use of the DSM-IV at the diagnosis stage:

[24]     The function of the SoP, in general terms, is to identify the minimum factors which must be present in the circumstances of the veteran’s case, to provide the necessary linkage between the disease suffered and operational service. The factors necessarily refer to the disorder in question. The principal purpose of the definition of each of PTSD and alcohol dependence is to permit a determination as to whether the SoP applies to the condition as found by the tribunal, presumably upon the basis of a clinical diagnosis. The diagnostic criteria for the disorders in the SoP are said to be “those specified in DSM-IV, and are as follows”. The criteria are intended as part of the definition for the purpose of the application of the SoP.

[25]     The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision of the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.

45    In our respectful opinion, the primary judge erred at Reasons [20] in holding that a veteran’s claim for PTSD “is not to be precluded by a finding that the decision-maker is not satisfied on the balance of probabilities that the traumatic event in question occurred, made at the initial stage of the diagnosis”. While there is no onus on a veteran to attach a label to the disease or injury manifest in his or her symptoms, if the disease or injury is alleged to be PTSD, the question of diagnosis is squarely raised and must be resolved.

46    The reasoning of the primary judge at Reasons [20] and [23] relies on the following passage from the Full Court in Budworth (2001) 116 FCR 200:

[19] The expression “as claimed” in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which it is attached, namely, “that the veteran suffered the injury or contracted the disease”. This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label “Post Traumatic Stress Disorder”, may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).

(Emphasis added.)

47    In our respectful opinion, this passage means that the decision-maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if it is so satisfied, it must then consider whether the illness or disease is war-caused. The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. It may be that, as Dr White suggested in his evidence before the Tribunal, there are PTSD-like diseases not falling within the DSM-IV description, such as, for example, an adjustment disorder or a depressive disorder. The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.

48    The point on which the present case turns is not one of insufficient correspondence between the symptoms described in the DSM-IV and those described by Mr Bawden; rather it is concerned with the inability of the decision-maker to be satisfied that Mr Bawden suffered a traumatic stress. A diagnosis of the disorder depends on satisfaction as to the historical fact of a traumatic stress.

49    The reasons given by the primary judge for adopting his approach are not, in our respectful opinion, sufficiently compelling to overcome the settled course of interpretation. Both reasons given by his Honour involve the idea that whether a traumatic event has occurred is concerned solely with the issue of causal nexus with war service rather than diagnosis. In our respectful opinion, that is not so. A finding that a traumatic event has occurred is indispensable to a diagnosis of PTSD. Further, there is a difficulty in terms of policy with his Honour’s approach in that it involves attributing to the legislature an intention that incapacity from an alleged illness or disease which is not accepted as having occurred at all, may nevertheless give rise to an entitlement to a pension for incapacity from a war-caused injury or disease. One should be slow to attribute to the legislature an intention that incapacity from an alleged illness which the decision-maker does not accept occurred at all is nevertheless compensable because it cannot be proven beyond reasonable doubt that it did not occur. The text of the Act does not warrant attributing that intention to the legislature.

50    For these reasons, we conclude that the Tribunal made no error of law in concluding that PTSD could not be diagnosed where it was not satisfied that Mr Bawden’s symptoms were associated with the sampan incident.

51    As to the issues raised by Mr Bawden’s notice of contention, to the extent that diagnosis involves a clinical judgment, there was opinion evidence before the Tribunal from Dr White and Dr Been to the effect that Mr Bawden suffered from PTSD associated with the sampan incident. As Dr White acknowledged in his evidence, his diagnosis of PTSD was dependent on accepting that the sampan incident was a traumatic incident. The Tribunal was not disposed to accept that the sampan incident was of that character. That decision was a decision on a matter of fact. As noted above, the appeal from the Tribunal lies “on a question of law”. Where a choice falls to be made between two conclusions open on a consideration of the facts, the question is one of fact. See Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153 at [39].

CONCLUSION AND ORDERS

52    We conclude that the primary judge erred in holding that the diagnosis of PTSD was to be determined otherwise than in accordance with s 120(4) of the Act. The matter should be remitted to the Tribunal so that Mr Bawden’s claim for a pension for incapacity from a disease or injury may be determined afresh by the Tribunal save that the Tribunal should not consider the hypothesis that Mr Bawden is incapacitated by PTSD as defined by the DSM-IV.

53    We would allow the appeal, set aside the orders of the primary judge made on 5 April 2012 and order that:

1.    That part of the decision of the Tribunal dated 2 May 2011 that the respondent does not suffer from PTSD as defined in the DSM-IV be affirmed;

2.    That part of the decision of the Tribunal which found that the respondent does not suffer from war-caused alcohol dependence and war-caused depressive disorder be set aside;

3.    The matter be remitted to the Tribunal for determination of the question whether the respondent suffers from a war-caused disease other than PTSD as defined in the DSM-IV;

4.    There be no order as to the costs of the appeal to this Court.

Associate:

Dated:    3 December 2012