FEDERAL COURT OF AUSTRALIA

Meehan v Repatriation Commission [2003] FCA 1371

VETERANS’ ENTITLEMENTS – reasonable hypothesis based on a statement of principles - whether generalised anxiety disorder was war-caused

Veterans’ Entitlements Act 1986 (Cth) ss 120, 120A & 196B

Bushell v Repatriation Commission (1992) 175 CLR 408 applied

Byrnes v Repatriation Commission (1993) 177 CLR 564 applied

Lees v Repatriation Commission (2002) 74 ALD 68 referred to

Repatriation Commission v Deledio (1998) 83 FCR 82 applied

JAMES SYDNEY MEEHAN v REPATRIATION COMMISSION

N 683 OF 2003

JACOBSON J

SYDNEY

28 NOVEMBER 2003

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Applicant pay the Respondent’s costs.

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

ON APPEAL FROM THE VETERANS’ APPEAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Repatriation Commission (“the Commission”) rejecting a claim by the Applicant for a disability pension for post traumatic stress disorder.  The Commission rejected the claim because it found that the Applicant’s recollection of the events, which were said to have caused the disorder, were unreliable.  The effect of the question of law stated in the Notice of Appeal is whether this finding satisfied the standard of proof laid down by s 120(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) under which the Commission is to determine that an injury was war-caused unless it is satisfied beyond a reasonable doubt that there is no sufficient ground for making that determination.

2                     The proceedings have a long history.  The decision of the Tribunal was its third decision on the Applicant’s claim.  Its first and second decisions were successfully appealed to the Court and remitted to the Tribunal for further hearing.  On the third rehearing the Tribunal determined that the material before it, which raised a claim for generalised anxiety disorder (“GAD”) based on the Applicant’s service in Vietnam, raised a reasonable hypothesis connecting the disability with the circumstances of the Applicant’s service in accordance with s 120(3) of the Act.  However, the Tribunal was satisfied beyond a reasonable doubt that there was no sufficient ground for determining that the Applicant’s general anxiety disorder was a war-caused disease.

The Legislation

3                     Section 120 of the Act relevantly provides:-

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

…

(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

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

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

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

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

(4)   Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

…

(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.

4                     Section 120A(3) provides:

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

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

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

that upholds the hypothesis.

5                     Section 196B(2) of the Act relevantly provides for the Repatriation Medical Authority (“the Authority”) to determine a Statement of Principles (“SoP”) where it is of the view that sound medical-scientific evidence indicates that a particular kind of disease can be related to operational service.  The Authority is then to determine an SoP for that kind of disease setting out the factors which must exist, as a minimum, before it can be said that a reasonable hypothesis has been raised connecting the disease with the circumstances of service.

6                     The Authority determined a SoP for GAD.  It is to be found in Instrument No 48/94 as amended by 275/95.  The relevant factors as stated in the instrument are 1(b) and 1(c) which are as follows:-

(b)   experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or

(c)    experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder;

The Proper Construction and Application of s 120(1) and s 120(3) of the Act

7                     This is to be found in the decision of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 (“Bushell”) as further explained in Byrnes v Repatriation Commission (1993) 177 CLR 564 (“Byrnes”).  These cases dealt with the position prior to the amendments passed in 1994.  The position after the amendments was explained by a Full Court (Beaumont, Hill and O’Connor JJ) in Repatriation Commission v Deledio (1998) 83 FCR 82  (“Deledio”).

8                     In Bushell, Mason CJ, Deane and McHugh JJ observed at 412 that the claimant for a pension has no onus of proving any matter which might be relevant to the claim; see s 120(6).  Thus, as their Honours said at 412 to 413, the claim having been made, it must succeed unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination; see s 120(1).  Accordingly, the Commission must be satisfied, to the criminal standard, of a negative proposition.  Their Honours pointed out at 413 that the meaning of the expression “beyond a reasonable doubt” is not left at large.  Satisfaction to that standard is deemed to be established if, after considering the whole of the material, the Commission is ofthe opinion that it does not raise a reasonable hypothesis connecting the disease with the circumstances of service; see s 120(3).

9                     Mason CJ, Deane and McHugh JJ then turned at 413 to 416 to the relationship between s 120(1) and s 120(3).  They observed at 413 that the purpose of s 120(3) is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis.  Their Honours quoted at 413 a passage from the explanatory memorandum which stated that s 120(3) will require the Commission to refuse the claim where at the end of its consideration of the material no reasonable hypothesis has been raised and, if raised, no such reasonable hypothesis remains.

10                  Their Honours said at 414 that the material will raise a reasonable hypothesis if it points to some facts which support the hypothesis and if the hypothesis can be regarded as reasonable.  They then referred to the circumstances in which a hypothesis cannot be said to be reasonable, (i.e. where it is contrary to known scientific facts or obviously fanciful or untenable).

11                  If the material does raise a reasonable hypothesis, as their Honours stated at 415, the claim must be dealt with in accordance with s 120(1).  They pointed out at 415 that s 120(3) is not concerned with the proof or satisfaction of the claim but with whether there is some material which calls for determination under s 120(1).  As they said at 416, once the material raises a reasonable hypothesis the operation of s 120(3) is spent and the case falls to be determined under s 120(1).

12                  Their Honours then explained the proper construction and application of s 120(1) in the following passage at 416:-

The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis.  Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.  But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, ‘beyond reasonable doubt, that there is no sufficient ground for making the determination’ even though the raised facts are not disproved.  Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1).  If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.

13                   In Byrnes, Mason CJ, Gaudron and McHugh JJ gave the following summary of the applicable principles at 571:-

The position may be summarized as follows:  (1) First, sub-s.(3) of s. 120  is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point.  (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

14                  The SoP requirement was introduced by the 1994 amendments which includeds 120A and s 196B.  In Deledio at first instance (see (1997) ALD 261), Heerey J explained the role of the SoP.  The Full Court agreed at 95 to 96 with his Honour’s explanation.  His Honour observed that the 1994 amendments left intact the “twin pillars” of the reverse “onus of proof” (i.e. satisfaction of the negative proposition because there is in fact no onus) beyond a reasonable doubt and the reasonable hypothesis.  Accordingly, his Honour said that the new regime of SoP’s had to be given an operation consistent with s 120(1) and s 120(3) as expounded by the High Court in Bushell and Byrnes.

15                  The SoP’s function, as explained by his Honour, is to prescribe a medical-scientific standard with which a hypothesis must be consistent.  It is a statute-backed declaration of what is a proved or known scientific fact.

16                  Heerey J pointed out that the effect of s 196B(2) is that the Authority is to identify the minimum factors which can connect the injury or disease with the circumstances of the particular service.  The claim must then fit the template laid down in the SoP.  The Byrnes methodology is then to be applied.  Do the facts raised by the claimant give rise to a reasonable hypothesis?  The hypothesis will not be reasonable if it is inconsistent with or not supported by an applicable SoP.

17                  As Heerey J then said in a passage quoted by the Full Court at 96:-

If the hypothesis is reasonable the claim will succeed unless:

iv.        one or more facts necessary to support it are disproved beyond  reasonable doubt; or

v.         the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.

18                  At the end of its judgment, the Full Court stated the four stages which a Tribunal must follow when dealing with a claim.  The first stages are to determine whether the material points to an hypothesis and, if so, whether there is an SoP in force.  Where that is the case, the third stage is reached.  Here the Tribunal is to form the opinion as to whether the hypothesis is reasonable.  It must contain one or more of the factors which the Authority has determined to be the minimum.  If the hypothesis is reasonable the Tribunal moves to the fourth stage which was described by the Full Court at 97 to 98 as follows:-

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 fromthe material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

The Tribunal’s Decision

19                  The Tribunal was satisfied that the first two stages referred to in Deledio had been satisfied.  The hypothesis on which the claim was based was in summary, that the Applicant had served on the HMAS Sydney in Vietnam in 1969, that he had been on sentry duty in Vung Tau Harbour in the dark, that he had seen men killed and injured and that he had seen corpses transported on his vessel in body bags.

20                  The SoP was stated in Instrument 48/94 with the relevant factors being those set out at [6] above.  Thus, the Tribunal said at [21] of its decision that it had to assess whether the hypothesis suggested that the veteran experienced an occurrence which evoked feelings of anxiety or stress not more than two years before the onset of his GAD.

21                  The Tribunal then considered at some length the question raised by the third stage referred to in Deledio, (i.e. whether the hypothesis was reasonable).  This was a determination of whether the material before the Commission raised a reasonable hypothesis within s 120(3) in light of the 1994 amendments.

22                  The Tribunal referred at [25] to a decision of the Full Court in Lees v Repatriation Commission (2002) 74 ALD 68 in which the purpose of the definition of GAD in the SoP was stated.  It was to identify those symptoms which, if observed by a clinician, would warrant a conclusion that the patient suffered from GAD and that the symptoms be revealed within two years of the veteran experiencing a severe psychological stressor during operational service.

23                  The Applicant relied on the evidence of Dr Dinnen, a consultant psychiatrist, whose evidence was that the Applicant showed signs of GAD which would have been present within two years of the stressors if the Applicant had not self-medicated with alcohol.

24                  The Tribunal set out Dr Dinnen’s evidence at some length from paras [42] to [53].  It quoted at [44] from one of his reports in which Dr Dinnen said that, in his opinion, the Applicant’s account of anxiety developing during his two trips to Vietnam was established.  He referred to the Applicant’s account of taking up drinking with a vengeance to control his fear and his statement that he could hear the charges being dropped and that this still causes him to get anxious.

25                  Before setting out its conclusions on the question of whether there was a reasonable hypothesis the Tribunal quoted at some length the relevant principles stated in Bushell and Byrnes.  At [58] the Tribunal stated that it felt compelled by the legislation and authorities to find that the hypothesis advanced was reasonable.

26                  The Tribunal then turned to the fourth stage of its deliberations as required by Deledio.  It said at [60] that it was concerned by the “repeated instances of unreliable material” put forward by the Applicant in support of his claim.  The Tribunal then listed ten instances of this material.

27                  The list included an exaggeration of the number of times the Applicant had been to Vietnam.  It also included an exaggeration of the amount of time he had spent there.  He told one of the psychiatrists who had given evidence for him that he had spent five months in Vietnam whereas in fact he had been there for only 5 ½ hours on each of two occasions.  He told one of the psychiatrists that he had seen people being killed but he later conceded that this was not so.  He told Dr Dinnen and another psychiatrist that he had seen corpses returning from Vietnam in body bags but there was independent evidence that the HMAS Sydney did not transport bodies from Vietnam.  He told Dr Dinnen that he had been a sentry officer on landing craft in Vung Tau Harbour at night.  However, the Tribunal found that the HMAS Sydney was in Vung Tau Harbour only in daylight hours and that the accurate picture was very different from and much less threatening than the version presented by the Applicant.

28                  Another of the facts raised by the Applicant in support of his hypothesis was that he had heard scare charges in Vung Tau Harbour at night while he was in his bunk.  The Tribunal found that it was extremely unlikely that the Applicant was in his bunk when he heard scare charge explosions. 

29                  The Tribunal said at [61] that in view of the unreliability of the Applicant’s recollection of events, it considered whether it was satisfied beyond reasonable doubt that the Applicant’s GAD was not war-caused.

30                  It said at [62] that the Tribunal considered the extent of the Applicant’s unreliability so great that it would only accept his evidence where it was corroborated.

31                  The Tribunal then said at [63] that it followed that the cogency of much of Dr Dinnen’s evidence, especially as regarding the time of clinical onset, was “doubtful”.  The Tribunal noted in the same paragraph that Dr Dinnen invested considerable reliance, apparently in an uncritical way, on what the Applicant had told him.

32                  The Tribunal observed that any material put forward by the Applicant to corroborate his symptoms was corroborated only in medical opinions based on the history provided by the Applicant.

33                  The Tribunal’s ultimate finding was stated in [65] as follows:-

The tribunal finds that the credibility problems that were integral to Mr Meehan’s evidence, and to material on which others based their evidence, rendered that material of little use as evidence.  The tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Meehan’s generalised anxiety disorder was a war-caused disease.

Whether the Tribunal’s finding satisfied the statutory standard of proof

34                  Mr Colborne, who appeared for the Applicant, submitted with some force that the Tribunal’s finding that evidence was unreliable and its finding that the cogency of Dr Dinnen’s evidence was doubtful did not satisfy the standard.  The same comments also applied to the Tribunal’s finding that the material on which “others” (i.e. Dr Dinnen and the other psychiatrists) based their evidence was of little use.

35                  However, the submission that a finding of unreliability is insufficient runs headlong into the contrary remarks of the High Court in Bushell in the passage which I have set out at [12].

36                  It is unnecessary to try to reconcile their Honours’ remarks about the unreliable material satisfying the statutory test with Mr Colborne’s submission that mere unreliability cannot discharge the need to be satisfied of a negative proposition to the criminal standard.  It seems to me to be appropriate to proceed upon the basis that Bushell was further explained in Byrnes and that what is required here, where the reasonable hypothesis is established, is that the Tribunal must be satisfied that one or more of the facts necessary to support it has been disproved beyond reasonable doubt.  No question arises here of any other fact inconsistent with the hypothesis being proved.

37                  It is true that the Tribunal did not make a specific finding that particular facts going to the hypothesis had been disproved.  However, on a fair reading of the Tribunal’s reasons at [60] to [65], in my opinion that is what it found.

38                  There can be no other explanation for the long list of “unreliable” material which the Tribunal listed at [60].  Those events as described by the Applicant to Dr Dinnen and his other medical experts were all critical to the reasonable hypothesis which satisfied s 120(3) of the Act.  But what was involved in step 4, that is, the determination under s 120(1), was whether the Commission was satisfied beyond a reasonable doubt that the factual foundation upon which the hypothesis operated did not exist.

39                  Here, the Commission rejected the factual foundation.  Although it used the words “unreliable”, “doubtful” and “of little use”, the effect of what it found was that it was satisfied beyond reasonable doubt that the facts upon which the diagnosis of GAD was based did not exist.  Without the factual underpinnings the medical opinions were of no use and there was nothing else to support the hypothesis.

Conclusion

40                  It follows in my opinion that the Tribunal applied the standard laid in s 120(1) of the Act in accordance with the principles stated by the High Court in Bushell and Byrnes and by the Full Federal Court in Deledio.

41                  Accordingly, the orders I will make are that the appeal be dismissed with costs.

Associate:

Dated:              28 November 2003