FEDERAL COURT OF AUSTRALIA

Stoddart v Repatriation Commission [2003] FCA 334

VETERAN’S ENTITLEMENTS – Statement of Principles – whether accrued right to have entitlement determined by SoP in force at time of application as well as SoP in force at time of Repatriation Commission decision.

VETERAN’S ENTITLEMENTS – Statement of Principles – expression “experienced a severe stressor in SoP” – whether “threat” of death or serious injury can exist only where the perceived threat was objectively real i.e. based on events happening or about to happen with real risk of death or serious injury – whether perception of risk of death or serious injury based on real events which a person with the claimant’s knowledge and in the claimant’s circumstances would reasonably understand to involve a threat of death or serious injury could amount to a “threat” of death or serious injury under the SoP.

WORDS AND PHRASES – “threat”.

Veterans’ Entitlements Act 1986 ss 9(1), 13(1), 120(3), 120A, 196B, 196E, 196G

Administrative Appeals Tribunal Act 1975 s 44(1)

Acts Interpretation Act 1901 (Cth) s 50

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

Repatriation Commission v Deledio (1998) 83 FCR 82 followed

Repatriation Commission v Hill [2002] FCAFC 192 referred to

McKenna v Repatriation Commission [1999] FCA 323 cited

Repatriation Commission v Gorton (2001) 110 FCR 321 followed

Repatriation Commission v Keeley (2000) 98 FCR 108 [2000] FCA 532 followed

Repatriation Commission v Thomas [2002] FCA 1497 referred to

Ogston v Repatriation Commission (1999) 86 FCR 578 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Waterford v Commonwealth (1987) 163 CLR 54 cited

Powell and Repatriation Commission [2000] AATA 385 distinguished

U & I Global Trading (Australia) Pty Ltd v Tasman–Warajay Pty Ltd (1995) 32 IPR 494 referred to

LESLIE STODDART v REPATRIATION COMMISSION

S 232 OF 2002

MANSFIELD J

17 APRIL 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The decision of the Administrative Appeals Tribunal given on 11 September 2002 is set aside.

2.         The claims for benefits under the Veterans’ Entitlements Act 1986 (Cth) made by the applicant be remitted to the Administrative Appeals Tribunal for further consideration or for reconsideration.

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

REASONS FOR JUDGMENT

introduction

1                     The questions on this application are:

(1)               whether the applicant was entitled to have his application for pension benefits under the Veterans’ Entitlements Act 1986 (the VE Act) in respect of incapacity from the conditions of post traumatic stress disorder (PTSD) and alcoholic liver damage (ALD) determined by applying the Statement of Principle (SoP) applicable to each condition in force at the time of his application, and

(2)               whether, in its application of the SoPs in force at the time of its decision, the Administrative Appeals Tribunal (the Tribunal) misconstrued or misapplied the SoPs when considering the applicant’s claims for pension benefits under the VE Act in respect of incapacity from PTSD or from ALD by:

(i)                  failing to consider whether the applicant subjectively experienced a “severe stressor”, and

(ii)                failing to consider whether the events claimed to lead to the “severe stressor” experienced by the applicant may have arisen or occurred from a threat to another person’s physical integrity.

2                     The application is by way of appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 from the decision of the Tribunal given on 11 September 2002.  The Tribunal affirmed a decision of the Repatriation Commission (the Commission) made on 5 July 1999, and affirmed by the Veterans’ Review Board (the Board) on 12 September 2000, refusing the applicant’s claim for pension for incapacity and for medical treatment for PTSD and separately for what was originally identified as “irritable bowel” but later diagnosed as ALD.  The Commission and the Board each decided that neither condition was war caused.  The claim by the applicant in respect of each of PTSD and ALD was made on 17 July 1998.

3                     Section 13(1) of the VE Act renders the Commonwealth liable to pay pension and medical treatment expenses for incapacity where a veteran has become incapacitated from a war caused disease.  The circumstances in which a disease is taken to be war caused are set out in s 9(1) of the VE Act.  They include where the disease arose out of or was attributable to eligible war service.

4                     The applicant served in the Royal Australian Navy between August 1955 and April 1962.  For the purposes of the VE Act, his eligible war service (which was also operational service) was during five periods when his ship was allotted to the Far Eastern Strategic Reserve:  21 September 1956 to 13 October 1956, 5 April 1957 to 7 May 1957, 7 June 1957 to 28 June 1957, 30 April 1958 to 13 May 1958, and 18 March 1959 to 28 April 1959.  The total period of his operational service was 134 days.

5                     The standard of proof to be applied by the Commission, and on review by the Tribunal, to the question whether a disease is war caused, where a claim relates to operational service, is dealt with in s 120(1) and (3) of the VE Act.  Section 120(1) provides that, in respect of such a claim, the Commission (and on review the Tribunal) shall determine that the disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  Section 120(3) then provides that in applying s 120(1), the Commission (and on review the Tribunal):

“… shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

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

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

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

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

Those provisions are applied in the manner explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.

6                     In substance, the Commission is required to find that a disease is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  It is directed to be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination if it is of opinion that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the operational service of the applicant.

7                     Section 120A then comes into operation, as the applicant’s claims were made after 1 June 1994.  Section 120A(3) provides:

“For the purposes of subsection 129(0), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

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

(b)                   a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.”

8                     By following the steps explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the Commission (and on review the Tribunal) was required to determine whether the conditions of which the applicant complained, or either of them, fitted the template described by the relevant SoPs.  The hypothesis to which s 120(3) refers will only be satisfied if the hypothesis fits, or is consistent with, the template in the relevant SoPs.  The hypothesis must therefore contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the applicant’s operational service.  If the hypothesis does contain one or more of these factors, it cannot be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If it does not fit within the template, it will be deemed not to be “reasonable” and the claim will fail because the Commission is directed by s 120(3) in that event to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that either of the diseases was a war-caused disease.

9                     The Full Court in Repatriation Commission v Hill [2002] FCAFC 192 at [57] explained that an SoP prescribes the essential content of what is a reasonable hypothesis, for the purposes of s 120(3), capable of connecting the particular kind of injury disease or death with the circumstances of the veteran’s particular war service.  In order to satisfy ss 120(3) and 120A(3) a hypothesis relied upon by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable:  see per Black CJ, Drummond and Kenny JJ at [57].

10                  There is no issue between the parties to this point.

consideration of the first question

11                  The first issue arises as to which SoP the Tribunal was required to address.

12                  There is no SoP for ALD, but the Tribunal considered that the condition of alcoholic liver damage is caused by alcohol abuse, and the chain of causation leads back then to that condition for which there is a SoP.  It identified the appropriate SoP as that for “alcohol dependence or alcohol abuse”:  see McKenna v Repatriation Commission [1999] FCA 323.  The parties are agreed that that was an appropriate step for the Tribunal to take.

13                  It is the identification of the relevant SoP for alcohol dependence or alcohol abuse which is in issue.  At the time of the Tribunal’s decision, and at the time of the Commission’s decision, the SoP for Alcohol Dependence or Alcohol Abuse was Instrument No.76 of 1998 (the 1998 Alcohol Abuse SoP).  It revoked, and was in substitution for, Instrument No.5 of 1994 Statement of Principles concerning Psychoactive Substance Abuse or Dependence (the 1994 Alcohol Abuse SoP).  The 1994 Alcohol Abuse SoP was in force at the time the applicant applied for pension for incapacity in respect of ALD, namely on 17 July 1998, and is more favourable to the applicant.

14                  The Tribunal said it followed the decision in Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194 (Gorton).  It decided that the SoP in force at the time of its decision and at the time of the Commission’s decision, namely the 1998 Alcohol Abuse SoP, was the one against which it should measure or determine the applicant’s entitlement.

15                  In relation to the condition of PTSD, the SoP concerning Post Traumatic Stress Disorder in force at the time of the Tribunal’s decision and at the time of the Commission’s decision was Instrument No.3 of 1999 as amended by Instrument No.54 of 1999 (the 1999 PTSD SoP).  The applicant contended before the Tribunal that the SoP in force at the time he made his claim, namely 17 July 1998, should be the one against which his entitlement was determined.  That was the SoP concerning Post Traumatic Stress Disorder in Instrument No.15 of 1994 (the 1994 PTSD SoP).  It also was more favourable to the applicant than the 1999 PTSD SoP.  Again the Tribunal made its determination by reference to the 1999 PTSD SoP based upon Gorton.

16                  In Gorton, the Full Court (Heerey, Emmett and Allsop JJ) determined that, in performing its function of review, the Tribunal should first approach the question of entitlement to a pension under the VE Act by reference to the SoP in force at the time of its decision.  If it determined by reference to that SoP that there was no entitlement to a pension, only then should it consider whether, by virtue of an SoP in force at the time of the Commission’s decision (or perhaps at the time of the application) there was an “accrued right” which was preserved under that earlier SoP to have the claim determined also by reference to that earlier SoP.  In the earlier decision of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108; [2000] FCA 532 (Keeley) the Full Court decided that a claimant is entitled to an accrued right to have his or her claim considered and reviewed by the Tribunal on the basis of the SoP current at the time of the Commission’s decision, despite the later revocation of that earlier SoP.  As explained in Gorton, it is only necessary to have regard to any such accrued right if the Tribunal, applying the SoP current at the date of its review, is of the view that the claim should be refused.

17                  In both Gorton and Keeley, there had been no change in the applicable SoP in force at the date of the Commission’s decision, and at the date upon which the application for pension under the VE Act was made.  It was not, therefore, necessary for the Court specifically to address the particular circumstances which presently arise.  Another factual variation arising from the revocation of an earlier SoP arose in Repatriation Commission v Thomas [2002] FCA 1497, where the SoP in force at the time of the Commission’s decision had been replaced by a later SoP in force at the time of review by the Board, and which had in turn been replaced by a further SoP in force at the time of the Tribunal’s decision.  One issue there argued was that there was also an “accrued right” on the part of the applicant to have his claim considered and reviewed by the Tribunal on the basis of the SoP current at the time of the Board’s decision, and also on the basis of the SoP current at the time of the Commission’s decision, as well as the claim being considered and determined by the SoP in force at the time of its decision.  That decision also is not directly on point in the present application.

18                  For the reason just mentioned, it was not critical to the decision in either Gorton or Keeley to focus upon whether the accrued right which each case recognised arises by reference to the SoP in force at the time of the Commission’s decision or at the time of the application for benefits under the VE Act. In each case, the SoP in force at each of those times was the same.

19                  However, in my view the analysis in each case of the source of the “accrued right” which was found to exist indicates that the Tribunal in this matter correctly addressed the claim by reference to the SoP in force at the time of the Commission’s decision (and at the time of its decision), and correctly rejected the contention that the applicant had an accrued right to have his claim determined by the SoP in force at the time his application was made.

20                  Section 120A(2) directs the Commission not to determine a claim for benefits under the VE Act, once the Repatriation Medical Authority has given notice under s 196G that it intends to carry out an investigation in respect of a particular kind of injury disease or death, until the Repatriation Medical Authority has made its determination of an SoP under s 196B(2), or has declared it does not propose to make such an SoP.

21                  Section 50 of the Acts Interpretation Act 1901 (Cth) provides that the repeal of a regulation does not, in the absence of a contrary intention, affect any right accrued under the regulation.  Keeley decided that the lodging of a claim for a benefit under the Act gave rise to a right to have the claim determined under the VE Act according to law, and that s 50 applied to that right (per Lee and Cooper JJ at 121).  The operation of s 120A(2) and (3) meant that the potential introduction of an SoP would delay the making of a decision on the claim, and the introduction of an SoP would in a substantive sense, as opposed merely to a procedural sense, “affect” the right which accrued to the claimant upon lodgment of a claim (per Lee and Cooper JJ at 122-123).

22                  In Keeley, Lee and Cooper JJ at 123 explained how the accrued right arose in the following terms at 123:

“The right that accrued to the respondent upon lodgment of a claim, to have the claim determined under the Act by the Commission, was “affected” accordingly.

…

The terms of s 120A(2) show a clear intention by Parliament that such a Statement is to “affect” the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission.  It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.”

23                  Those cases indicate that the accrued right, which arises by reason to the making of a claim for benefits under the VE Act, is to have the claim determined by reference to the SoP in force at the time of the Commission’s decision.  That is because of the direction in s 120A(2).

24                  I consider that reasoning applies whether there was no SoP in force at the time the claim was made, or there was an SoP in force at the time the claim was made and was replaced by a reviewed SoP at the time of the Commission’s decision.  The Repatriation Medical Authority is obliged to give public notice of a proposed SoP or of a proposed review of the contents of an SoP:  s 196G(1).  Such notice obliges the Commission not to determine a claim until the investigation by the Repatriation Medical Authority has been completed:  s 120A(2).  Section 120A(2) uses the expression “an investigation in respect of a particular kind of injury, disease or death”.  Those words parallel the words in s 196G(1)(c) about the content of the notice.  It does not distinguish between an investigation where there is no existing SoP and one to review an existing SoP.  In my view, as s 120A(2) refers to the notice of investigation, the fact that s 196G(1)(i) and (iii), s 196E(1)(d) and (f), and s 196B(4) and (7), separately deal with the initial investigation towards an SoP and the review of an SoP is not of consequence to the present issue.  For the purposes of notification under s 196G(1)(c), the two processes are treated the same way.  It is the notification of the investigation under s 196G(1)(c) which triggers the obligation under s 120A(2).

25                  My conclusion accords with the observations of Allsop J (with whom Emmett J agreed) in Gorton and of Lee and Cooper JJ in Keeley at 123.  In Gorton, Allsop J at 333 described Keeley as deciding that:

“a claimant had an accrued right to have his or her pension claim reviewed by the Tribunal by reference to the SoP in force at the time of the decision of the Commission.”

His Honour repeated that understanding of Keeley at 335 and 336.  In Keeley, the joint judgment of Lee and Cooper JJ recognised at 123 that the accrued right to have a claim determined under the Act at the time of the application required the Commission making the decision to apply the SoP at the time of the Commission’s decision because s 120A(2) directed the Commission to do so.  In other words, the right which accrued upon lodgment of the claim was the right to have the Commission determine the claim by reference to the SoP in force at the time of its decision.

26                  It is explicitly in accord with the decision of the Full Court in Ogston v Repatriation Commission (1999) 86 FCR 578 that a claim for a pension made after 1 June 1994 is to be determined by reference to any SoP in force at the time of the Commission’s decision (per Burchett, Branson and RD Nicholson JJ).  The Court at 582 found the terms of s 120A unambiguous and rejected the claim that, once a claim was made under Pt II of the VE Act, the applicant has a right to have the claim determined by reference to the law in operation on the day of the making of the claim.

27                  The circumstance that the Commission is obliged to defer a decision on a claim pending the making or review of a Statement of Principles was remarked upon by Lee and Cooper JJ in Keeley at 123 in the following terms:

“However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed.  The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c).  It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).”

I respectfully disagree with the latter part of those remarks if they were intended to apply to the Commission where the Repatriation Medical Authority has given notice under s 196G(1)(c) of a reconsideration of a Statement of Principles, for reasons given in [24] above.

28                  Hence, in the present circumstances, the applicant’s accrued right was to have his claim in respect of the condition of ALD determined by the Commission by reference to the SoP in force at the time of the making of the decision, namely the 1998 Alcoholic Abuse SoP, and he had no accrued right to have his claim determined by the Commission by reference to the 1994 Alcohol Abuse SoP simply because it was in force at the time of the making of his claim.  Similarly, in my judgment, the applicant had no accrued right to have his claim determined by the Commission by reference to the 1994 PTSD SoP in force at the time of the making of his claim.  He had an accrued right to have his claim in respect of the condition of PTSD determined by the Commission in accordance with the 1999 PTSD SoP, in force at the time of the Commission’s decision.

29                  For those reasons, I reject the first ground of appeal raised by the applicant.

CONSIDERATION OF THE SECOND QUESTION

30                  The second issue raised by the applicant requires consideration of the terms of the 1998 Alcohol Abuse SoP and of the 1999 PTSD SoP, and reference to certain findings made by the Tribunal.

31                  Each of the 1998 Alcohol Abuse SoP and the 1999 PTSD SoP specify the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting each of those conditions with the circumstances of a person’s relevant service.  In each instance, one necessary factor is that the applicant experienced a severe stressor prior to the clinical onset of PTSD (Factor 5(a) in the 1999 PTSD SoP).  In the 1998 Alcohol Abuse SoP, Factor 5(b) prescribes as a necessary factor that the applicant experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.  Each of the SoPs defines “experiencing a severe stressor” in much the same way.  The definition in the 1998 Alcohol Abuse SoP is:

“ ‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:

(i)                 threat of serious injury or death; or

(ii)               engagement with the enemy; or

(iii)             witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”

The definition of “experiencing a severe stressor” in the 1999 PTSD SoP is slightly different in wording, as it refers to “another person’s” rather than to “other people’s” and it does not have the words “which event or events might evoke intense fear, helplessness or horror”.  Counsel were agreed that in the present circumstances the differences are insignificant.

32                  The applicant now contends that, during his operational service, he experienced “severe stressors” whilst working in the engine rooms of vessels namely:

(i)         occasions when he was required to check the tunnels and temperature gauges deep down at the bottom of the vessel, a task which he undertook alone without radio or other contact, and where he had no way of communicating if he was in trouble; while doing the task he had to lock doors behind him to ensure the area was completely sealed and water tight.  He told the Tribunal that he recalled being terrified when undertaking this task, and perceived his life to be under threat, particularly when the vessel was called to action stations, as in that event there would have been little, if any, chance of him getting out alive;

(ii)        occasions when the vessel was called to action stations while he was in the engine room below the water line, sealed and water tight.  He told the Tribunal that he feared that if the vessel was hit by enemy fire there would be little, if any, chance of him getting out alive, so that he was intensely frightened during periods of his operational service as he did not know whether the call to action stations was an exercise, or the real thing.

He gave evidence of other incidents which he claimed involved him experiencing severe stressors, but the Tribunal did not accept them.  It is not now necessary to refer to them as the applicant does not seek to go behind the Tribunal’s findings of fact about them.  The two “occasions” referred to, about which the Tribunal made no findings, he claims amounted to him experiencing “severe stressors” leading to him consuming large amounts of alcohol to deal with the incidents and leading to his fear and stress.  It was not necessary for the Tribunal to make findings on those claims because it took the view that, even if the applicant were truthful, in the light of its other findings he could not come within the relevant definitions.

33                  The Commission disputed that, during his operational service, the applicant ever experienced a severe stressor as defined in the relevant SoP.  It sought to show neither vessel in which he had served during his operational service was in fact under active threat, or was actually called to action stations.

34                  The Tribunal concluded:

“On the whole of the evidence, the first three [sic] stressors relied upon by the applicant as operational service stressors, namely the tunnels, the boiler/engine room, and fear of action stations, are all normal duties and events that occur whilst a stoker/mechanical engineer is serving in the Navy at any time.  There was, in my view, nothing in the evidence to distinguish any factor of these events as occurring during operational service.”

It is clear that the Tribunal accidentally, and erroneously, referred to “three” stressors when it meant to refer to two stressors, namely those referred to in [32] above.

35                  The Tribunal dealt with the claim, after making its findings of fact, in the following terms:

“Factor 5(a) of the 1999 PTSD SoP, and Factor 5(b) of the Alcohol Abuse SoP, require that the person experience a severe stressor prior to the clinical onset of the conditions.  Experiencing a severe stressor is defined as meaning that the person witness, or be confronted with, an event or events that involved actual or threatened death or serious injury, or a threat to the person’s or another person’s physical integrity.  This is an objective test.  Even if I was to accept the veracity of the applicant’s evidence, the events he has outlined do not objectively satisfy the relevant factors.  There was never an actual threat to the Sydney or the Melbourne.  I am satisfied, beyond reasonable doubt, that the applicant never experienced, witnessed or was confronted with an event or events that involved actual, or threat of death, or serious injury.”

As a consequence, the Tribunal was not satisfied beyond reasonable doubt that either Factor 5(a) of the 1999 PTSD SoP or Factor 5(b) of the 1998 Alcohol Abuse SoP was satisfied.  Therefore it was satisfied beyond reasonable doubt that there was not sufficient ground for determining that the applicant’s conditions of ALD and PTSD were war caused.  The material before the Tribunal did not raise a reasonable hypothesis connecting either of those conditions with the circumstances of the particular service rendered by the applicant.  It accordingly affirmed the decisions under review.

36                  The two points made by senior counsel for the applicant were first that the Tribunal erred in regarding the two factors as imposing an objective test only, because the use of the word “experiencing” contains a subjective element.  It was necessary for the Tribunal to consider that element and it failed to do so.  The second contention of senior counsel for the applicant was that the final sentence of the Tribunal’s conclusions as set out in [35] did not address the alternative for which each of the SoPs provide, namely that the applicant experienced a severe stressor by reason of actual threatened death or serious injury to some other persons’ physical integrity.  The finding specifically is that the applicant himself never experienced, witnessed or was confronted with events that involved actual or threat of death or serious injury.

37                  It is convenient first to deal with the second contention.  In my judgment, it is not made out.  In the same passage in which the sentence which is under attack appears, the Tribunal has clearly recognised the two alternatives identified by the two SoPs, namely that the event or events experienced by the applicant may have involved the threat of death or serious injury to his own physical integrity, or alternatively to the physical integrity of other persons.  The gist of its reasoning is that it found there was no actual threat to either of the vessels in which the applicant was serving at the time he experienced the occasions to which he referred.  It set out both relevant alternatives of the definition of “experiencing a severe stressor”.  In my view a fair reading of the Tribunal’s reasons (see e.g. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), indicates that the Tribunal found the objective aspect of experiencing a severe stressor simply did not exist, because neither of the vessels in which the applicant served during his operational service was at any time the subject of an actual threat.  It did not need specifically to repeat the alternative that there was no threat to another person’s physical integrity, because the objective fact which might have led to that threat was not found to exist.  It has in the sentence under attack, in a shorthand way, reflected that finding in its conclusion.  On this application, it is not appropriate to consider whether the Tribunal’s finding that there was never an actual threat to the Sydney or the Melbourne is correct.  It is a finding of fact, and there is no error of law simply in making a wrong finding of fact:  Waterford v Commonwealth (1987) 163 CLR 54 at 77-78.  In addition, even if the applicant’s contention is correct that his subjective perception of events is a qualifying circumstance to come within the definition, his evidence was that on the “occasions” he described he feared for his own safety rather than that of some other person.  The Tribunal is not shown to have misunderstood the nature of his claims.

38                  The main contention in this aspect of the applicant’s case is that the Tribunal erred in concluding that, because neither vessel in which he served during his operational service actually came under threat, objectively he did not experience a severe stressor because he did not experience or witness, and was not confronted with, an event or events that involved actual death or serious injury, or the threat of death or serious injury.  It described the two “occasions” he identified as severe stressors as occurring in the normal duties of a stoker/mechanical engineer.  The Tribunal said there was nothing in the evidence to distinguish any element of those events as occurring in operational service.  The Tribunal accepted a distinction propounded by counsel for the Commission, and urged upon the Court by senior counsel on this application:  the threat of death or serious injury or to physical integrity must be real, judged objectively, rather than perceived.  Here, the Tribunal concluded that, because the vessels in which he had served during his operational service had not in fact come under attack, or threatened attack, he did not experience or was not confronted with an event or events which actually involved threat of death or serious injury to him, assuming his description of either or both of the two occasions referred to in [30] were accepted.

39                  Resolution of the issue depends upon the proper construction or understanding of the definition of “experiencing a severe stressor” in each of the SoPs.  The SoPs are statutory instruments as they are expressly identified as disallowable instruments for the purposes of s 46A of the Acts Interpretation Act.

40                  There is no doubt that there is a subjective element required to “experience” a severe stressor.  The requirement that a threat should be experienced conveys simply that the threat should in fact be met, undergone or felt.  The Tribunal did not in my view overlook that issue.  It did not have to address the issue because it concluded that the acceptance of the applicant’s claims about the occasions giving rise to his fears “do not objectively satisfy the relevant factors”, namely being “confronted with an event or events that involved actual … or threat of death, or serious injury”.

41                  In my view, it is at that point the Tribunal has fallen into error.  It has required a “threat” to be one which, judged objectively and remote from the circumstances and state of knowledge of the person experiencing or witnessing or being confronted with the threat, has a real or actual prospect of actually resulting in death or injury or harm to physical integrity.  I think it has thereby imported into the concept of a “threat” in the SoPs more than is demanded by their wording and by their purpose.

42                  The definition of “experiencing a severe stressor” relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character.  The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity.  One can posit various circumstances in which an event or events may present differing degrees of probability or possibility that they may present the threat of death or serious injury.  It clearly is a threat to be confronted with a person holding a loaded cocked gun and who is threatening to shoot.  But what if, unknown to the person experiencing the circumstances, the gun is unloaded?  or is a replica only?  or the distance is such that the person threatening to shoot is unlikely to hit the identified target, or is only remotely likely to do so?  In all but the first illustration, with the full knowledge of the circumstances, the external observer could conclude that there was no actual risk of the gun being discharged and causing death or serious injury.  In the sort of circumstances addressed by the Tribunal, is there a “threat” where battle stations were sounded when an attack on a vessel was anticipated, but the attack never eventuated?  or the anticipated attack resulted from an error on the part of a crew member about the nature of the information received, or from misinterpretation of such information?

43                  In some circumstances it may be that some or many of a ship’s crew are unaware that the occasion is a practice or rehearsal.  If those persons are not aware that the occasion is a practice or rehearsal only, to them the realistic and potentially real circumstance is the presence of a threat of serious injury or death if the ship is attacked.  It may be the purpose of the exercise to impose that understanding on the crew, or it may be the consequence of the exercise that some of the crew (for example, the applicant if his evidence is accepted) are confronted with the real circumstance of a threat of serious injury or death if the ship is in fact attacked.

44                  In the sort of circumstances addressed by the Tribunal, what is the measure of an actual risk or threat of death or serious injury:  there being an attack upon the vessel?  or what degree of probability of an attack upon the vessel?

45                  Those rhetorical questions prompt attention to the purpose of SoPs.  It is discussed in [8] above.  Their function was discussed by Allsop J in Gorton at 335 [58-59] as being to represent:

“…sound medical-scientific evidence and to identify, on that sound contemporary science, minimum factors relevant to the issue of the causal connection between injury, disease or death and service.”

and as deploying:

“… the most up-to-date medicine and science to identify or refine the proper scientific and medical frame of reference or universe of discourse for the reliable answering of the question whether the death, injury or disease was caused by the service.”

The SoPs must be construed or understood in that context.

46                  If the applicant’s description of the two occasions were to be accepted, he may have been confronted with events which he perceived as involving threat of death or serious injury to him, although on the Tribunal’s findings they did not do so because the ship he was in did not actually come under attack.

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

48                  Nevertheless, that distinction urged by the respondent has been drawn in at least one decision of the Tribunal:  Powell and Repatriation Commission [2000] AATA 385 (Powell).  The distinction was not critical to the outcome of the claim, as the claim for benefits for PTSD succeeded by reason of other events which were found actually to involve threat to the claimant’s physical integrity whilst serving in Vietnam.  It concerned the 1994 PTSD SoP, where the description of experiencing a stressor was as follows: 

“… the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity.”

There are no material differences in the relevant definitions for present purposes.  The Deputy President at [142]-[143] rejected other events recounted by the claimant as meeting the description of experiencing a stressor.  The Deputy President said:

“While I accept that Mr Powell was fearful on other occasions … there is no evidence that, when viewed objectively, he was confronted with an event that involved any threat to his personal integrity.  He perceived such a threat but criteria (a) requires that, on an objective basis, there be such a threat.”

49                  The other events included circumstances where the claimant feared personal harm, but viewed objectively there was found to be no threat of harm, e.g. when the claimant was purchasing supplies in Vietnamese markets in one-way alleys and he feared ambush by the Viet Cong, and when the claimant had to cater for a luncheon in an open area in Vietnam where he feared an attack by the Viet Cong.

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

51                  The two SoPs indicate the Repatriation Medical Authority considered there is sound medical evidence indicating both ALD and PTSD can be related to operational service.  The SoPs were therefore required to set out the factors which must as a minimum exist, and which of those factors must be factors related to service rendered by a person, before it can be said a reasonable hypothesis has been raised connecting those diseases with the circumstances of that service.  Section 196B(14)(f) defines a factor causing or contributing to a disease as related to service rendered by a person if the disease would not have occurred but for the rendering of that service by the person.  Subsections (14)(a) and (d) provide the alternatives where the disease resulted from an occurrence that happened while the person was rendering that service or was contributed to in a material degree or was aggravated by that service.  It is consistent with those provisions that the SoPs should be read as meaning that a claimant experiences “a severe stressor” if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience, could reasonably be so perceived.

52                  The view I have reached accords with the common meaning of “threat”.  It is defined in The Macquarie Concise Dictionary, 2^nd ed, p 1050, as:

“an indication of probable evil to come; something that gives indication of causing evil or harm.”

The other meaning given relates to the communication of an intention to inflict harm.  In my view, it is in the quoted sense that the word “threat” appears in the definition of “experiencing a severe stressor” in each of the SoPs.  The adoption of that meaning accommodates the type of circumstance referred to in the preceding paragraph, that is a state of affairs which could reasonably be understood by a normal person in the position of the applicant as exposing that person (or others) to a detriment.  The SoPs require the detriment to be death or serious injury or to physical integrity.  In the 1998 Alcohol Abuse SoP there is the additional requirement that the event or events might evoke intense fear, helplessness or horror.

53                  I note that the test of whether there has been a threat of infringement proceedings for the purposes of s 128 of the Patents Act 1990 (Cth) is measured against the understanding of the reasonable person who received the communication:  see e.g. ULI Global Trading (Australia) Pty Ltd v Tasman–Warajay Pty Ltd (1995) 32 IPR 494 at 500 per Cooper J.  That meaning of “threat” under s 128 of the Patents Act, and under s 70 of the Patents Act 1997 (UK) is discussed in Lahore, “Patents, Trade Marks and Related Rights”, Butterworths Vol 1, [18,040] at 18,068 and in Halsbury’s Laws of England, 4^th ed reissue, Vol 35 [644] at 411-412.  Although of course there is no real analogy between the two provisions, the meaning of “threat” in that legislation is consistent with the view I have come to about its meaning in the two SoPs.

54                  Consequently, I consider the Tribunal erred in law in its understanding of the expression “experiencing a severe stressor” in each of the SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances, to the applicant’s (or another person’s) physical integrity before the minimum factors in each SoP could be met.

55                  In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.

56                  I accordingly set aside the Tribunal’s decision.  It is not appropriate for the Court to conclude whether the two “occasions” described by the applicant in fact constitute a threat.  The Tribunal has made no findings about them.  There may be nuances of fact which will impact upon the Tribunal’s conclusion.  It is sufficient to say that if, for example, the call to battle stations was seen by the applicant as real (and not an exercise), and if a reasonable person in his position and with his knowledge could reasonably understand that there was a real risk of the vessel in which he was then serving being at risk of attack, then it would be easy to understand that he should perceive there was a threat to his life or of serious injury in the way he described.  However, such matters are for the Tribunal.  I therefore remit the application to the Tribunal to reconsider the applicant’s claims for pension and other benefits under the VE Act in respect of ALD and PTSD in accordance with these reasons.  That will involve the Tribunal making certain findings of fact on matters upon which it has not yet made findings.  It is a matter for the President of the Tribunal whether the Tribunal is to be differently constituted, but I see no reason why the application could not simply be further considered by the Tribunal as constituted for the making of its decision on 11 September 2002.

Associate:

Dated:              14 April 2003