FEDERAL COURT OF AUSTRALIA

Mines v Repatriation Commission [2004] FCA 1331

VETERANS’ ENTITLEMENTS – pension – disease – whether war-caused – standard of proof – standard for determining whether veteran suffers from a disease – post traumatic stress disorder – question whether veteran experienced a traumatic event in course of war service – whether this question determined on balance of probabilities or on reverse beyond reasonable doubt standard – characterisation of symptoms suffered by veteran – whether Tribunal’s approach correct

Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 6-6F, 7(1), 13(1), 196B, 120, 120A

Administrative Appeals Tribunal Act 1975 (Cth) ss 44(1), 44(5)

Repatriation Commission v Deledio (1998) 83 FCR 82 followed

Repatriation Commission v Smith (1987) 15 FCR 327 followed

Byrnes v Repatriation Commission (1993) 177 CLR 564 considered

Repatriation Commission v Cooke (1998) 90 FCR 307 cited

Preston v Repatriation Commission (1993) 45 FCR 214 cited

Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200 considered

Repatriation Commission v Gosewinckel [1999] FCA 1273 (1999) 59 ALD 690 cited

Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 70 ALD 622 cited

JOHN WILLIAM MINES v REPATRIATION COMMISSION

V 632 of 2003

GRAY J

19 OCTOBER 2004

MELBOURNE

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The decision of the Administrative Appeals Tribunal, made on 14 July 2003,
            affirming the decision under review, be set aside. 

3.         The case be remitted to the Administrative Appeals Tribunal, differently constituted,
            to be heard and decided again.

4.         The respondent pay the applicant’s costs of the appeal.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

The nature and history of the proceeding

1                     This appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) concerns the application of the difficult provisions of the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’) concerning the manner in which decision-makers must approach the determination of issues on which entitlements depend.

2                     The applicant served in the Australian Army from 12 April 1967 to 2 August 1998.  He rendered operational service in Vietnam between 22 April 1968 and 11 May 1969 and again between 11 February 1971 and 2 February 1972, the second period of service being voluntary.  He retired from service on medical grounds, with atrial fibrillation.

3                     On 30 November 1998, the applicant made a claim for a disability pension and medical treatment for hypertension, atrial fibrillation and sleep apnoea.  On 16 December 1998, the respondent, the Repatriation Commission (‘the Commission’) refused this claim, on the basis that none of the claimed conditions was war-caused.  On 14 January 1999, the applicant applied to the Veterans’ Review Board (‘the VRB’) for review of that decision.  On 5 February 2002, the VRB made a decision, affirming the decision of the Commission.

4                     In the meantime, on 18 October 2000, the applicant made a further claim for disability pension on the basis of ‘nervous condition’, ‘substance abuse’, gastro-oesophageal reflux, tinnitus and ‘eyesight problems’.  On 21 April 2001, the Commission made a decision accepting that the applicant had war-caused tinnitus and sensorineural hearing loss, and assessing the applicant’s pension on this basis at 20 per cent of the general rate.  At the same time, the Commission decided not to accept the applicant’s claimed ‘nervous condition’, ‘substance abuse’, gastro-oesophageal reflux disease and bilateral myopia as war-caused.  On 30 April 2001, the applicant applied to the VRB for review of this decision.  On 5 February 2002, in a separate decision, the VRB decided to affirm the decision of the Commission. 

5                     On 4 March 2002, the applicant applied to the Tribunal for review of both decisions of the VRB.  Before the Tribunal, he did not pursue his claims for atrial fibrillation and bilateral myopia.  He claimed to have a history of excessive alcohol intake, caused or increased as a result of several stressors suffered during his service in Vietnam.  In the Tribunal, his condition was characterised as post traumatic stress disorder (‘PTSD’) or generalised anxiety disorder.  His claims in respect of hypertension, sleep apnoea and gastro-oesophageal reflux were also said to be linked to war-caused excessive alcohol intake. 

6                     On 14 July 2003, the Tribunal decided to affirm the decisions under review.

7                     On 11 August 2003, the applicant filed his notice of appeal in this Court.  By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), an appeal to this Court from a decision of the Tribunal is limited to a question of law.  The questions set out in the applicant’s notice of appeal, and the grounds of appeal, appear to be directed in most cases to challenging findings of fact made by the Tribunal.  It is nevertheless possible to discern from the notice of appeal, and from the submissions made on behalf of the applicant, an issue as to whether the Tribunal applied the correct standard when making findings of fact.  To resolve this question, it is necessary to examine some provisions of the VE Act, and some authority as to the proper construction of those provisions, before looking in some detail at the reasons for decision of the Tribunal. 

The legislation

8                     Section 9(1) of the VE Act provides, so far as is relevant to the present case:

‘(1)      Subject to this section, for the purposes of this Act, an injury suffered
            by a veteran shall be taken to be a war-caused injury, or a disease
            contracted by a veteran shall be taken to be a war-caused disease, if:

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

            (b)        the injury suffered, or disease contracted, by the veteran arose
                        out of, or was attributable to, any eligible war service rendered
                        by the veteran;

            ...

            (e)        the injury suffered, or disease contracted, by the veteran:

                        (i)         was suffered or contracted while the veteran was
                                    rendering eligible war service, but did not arise out of
                                    that service; or

                        (ii)        was suffered or contracted before the commencement of
                                    the period, or last period, of eligible war service
                                    rendered by the veteran, but not while the veteran was
                                    rendering eligible war service;

                        and, in the opinion of the Commission, the injury or disease
                        was contributed to in a material degree by, or was aggravated
                        by, any eligible war service rendered by the veteran, being
                        service rendered after the veteran suffered that injury or
                        contracted that disease;

            but not otherwise.’

9                     The term ‘operational service’ is the subject of extensive definitions in ss 6 to 6F of the VE Act.  It is unnecessary to recount the terms of any of those definitions, because there is no dispute in the present case that the applicant rendered operational service while he was serving in Vietnam.  By s 7(1), a person who has rendered operational service must be taken to have rendered ‘eligible war service’ while rendering operational service. 

10                  By s 13(1) of the VE Act, where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay pension by way of compensation to the veteran, in accordance with the VE Act.

11                  Section 120 of the VE Act relates to the standard of proof.  So far as is relevant to the present case, it 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.

            Note:      This subsection is affected by section 120A.

(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.

            Note:      This subsection is affected by section 120B.

(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 or a
                        defence-caused injury;

            (b)        a disease contracted by a person is a war-caused disease or a
                        defence-caused disease;

            (c)        the death of a person is war-caused or defence-caused; 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.’

12                  Section 120A of the VE Act provides, so far as relevant to the present case:

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

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

...

(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.’

13                  Section 196B of the VE Act provides for the Repatriation Medical Authority, if it is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, to determine a Statement of Principles (‘SoP’) of that kind of injury, disease or death, setting out the factors that as a minimum must exist and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. 

14                  Pursuant to s 196B of the VE Act, the Repatriation Medical Authority has determined an SoP concerning PTSD.  Clause 5 of that SoP provides, so far as is relevant:

‘The factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of a person’s relevant
service are:

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

15                  The phrase ‘experiencing a severe stressor’ is defined to mean:

‘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’.

16                  There is also an SoP relating to anxiety disorder.  So far as is relevant to the present case, that SoP provides in cl 5:

‘The factors that must exist before it can be said that, on the balance of probabilities, anxiety disorder or death from anxiety disorder is connected with the circumstances of a person’s relevant service are:

(a)       for generalised anxiety disorder or anxiety disorder not otherwise
            specified, only

            (i)         experiencing a severe psychosocial stressor within one year
                        immediately before the clinical onset of anxiety disorder; or

            (ii)        having a clinically significant psychiatric condition within one
                        year immediately before the clinical onset of anxiety disorder’.

17                  The phrase ‘severe psychosocial stressor’ is defined to mean:

‘an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems’.

18                  There is also an SoP concerning alcohol dependence or alcohol abuse, cl 5 of which provides:

‘The factors that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service are:

(a)       suffering from a psychiatric disorder at the time of the clinical onset of
alcohol dependence or alcohol abuse; or

(b)       experiencing a severe stressor within the one year immediately before
the clinical onset of alcohol dependence or alcohol abuse’.

19                  The definition of ‘experiencing a severe stressor’ in the SoP relating to alcohol dependence or alcohol abuse is the same as in the SoP relating to PTSD.

20                  Clause 5 of the SoP concerning hypertension provides:

‘The factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person’s relevant service are:

...

(b)       suffering from alcohol dependence or alcohol abuse, involving
            consumption of an average of at least 300 grams per week of alcohol
            (contained within alcoholic drinks) at the time of the clinical onset of
            hypertension’.

21                  The SoP relating to gastro-oesophageal reflux disease in cl 5:

‘The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease with the circumstances of a person’s relevant service are:

...

(g)       suffering from alcohol dependence or alcohol abuse and consuming
            alcohol at the time of clinical onset of gastro-oesophageal reflux
            disease’.

22                  There is also an SoP for sleep apnoea. 

The required steps

23                  In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the Full Court set out the steps a decision-maker is required to take pursuant to s 120 and 120A of the VE Act, in cases in which an SoP exists.  The Full Court said:

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

2.         If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.         If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (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.’

The Tribunal’s reasons

24                  In its summary of the evidence before it, the Tribunal referred to the applicant’s claim that he had experienced two stressors on his first tour of duty in Vietnam.  The first was referred to as ‘the Saigon firefight’.  The applicant claimed that, in the course of returning to the hotel at which he was accommodated in Saigon, after he had performed a 16-hour shift as part of his duty as a cryptographer, he and others in his group had been fired on and had returned the fire.  The second stressor incident occurred shortly thereafter, when the applicant was present when American soldiers returned enemy fire.  The applicant claimed he had experienced fear on both occasions.  The applicant also claimed that he had experienced two stressor incidents during his second tour of duty in Vietnam.  The first he described as an incident when a Vietnamese policeman fired at a party of which the applicant was a member, and the applicant, in response to an order of a superior officer, pointed an unloaded machine gun at the policeman.  The second incident was when the applicant witnessed the carnage resulting from the destruction of a bus containing Vietnamese people by the explosion of a bomb. 

25                  The applicant attributed his claimed conditions of hypertension, and sleep apnoea to excessive alcohol consumption, which he said was caused by his experiences in Vietnam.  In the evidence before the Tribunal, there was clearly an issue as to whether the applicant was an excessive drinker at all, as well as an issue as to whether, if he did drink excessively, he did so because of his experiences in Vietnam.

26                  In the course of the Tribunal hearing, the applicant was cross-examined at length about each of the four incidents upon which he relied as stressors.  The advocate who appeared for the Commission also called to give evidence a witness named Lambey, who was the sergeant in charge of the applicant’s group at the time of the Saigon firefight incident.  His account of the incident differed from that of the applicant.  According to Mr Lambey, the centre of activity was an American hotel, 200 or 300 yards away from the hotel at which the applicant’s group was staying.  The group decided to leave their bus and walk to their hotel.  They were not fired upon at any time, were not targeted, and did not fire any weapons themselves.  Helicopters were flying overhead and were firing rockets and machine guns into a building a block behind the hotel in which the applicant’s group was staying.  Any firing was 200 to 300 yards from the group. 

27                  The Tribunal had before it a quantity of medical evidence, in which the various doctors identified one or more of the stressor incidents relied on by the applicant as part of the history given by the applicant to the respective medical practitioners.  The medical practitioners expressed their opinions based on their observation of the applicant and the histories that he gave to them. 

28                  The Tribunal also had before it reports from a research service in relation to the alleged stressor incidents.  The research service consulted the officer commanding the applicant’s squadron in Vietnam, who had no knowledge of the Saigon firefight incident, nor of any incident in which the applicant was fired on while on patrol.  He expressed the view that it would have been unusual for keyboard operators in the squadron to be employed on patrol duties in Saigon.

29                  After summarising the evidence, the Tribunal set out in its reasons for decision ss 120(1) and (3) of the VE Act.  It then referred to the relevant SoPs, quoting passages from some of them.  It then quoted from the Full Court judgment in Deledio the passage I have quoted above, containing the four steps for the application of the legislation when there is a relevant SoP in existence. 

30                  The Tribunal then summarised the submissions before it.  Its summary included the following:

‘The respondent submitted that, on the balance of probabilities, the applicant does not have PTSD.  In the alternative, there is no evidence of a severe stressor and Dr Benjamin had found no psychological disorder.  Dr Parkin diagnosed pre-service anxiety disorder and post service PTSD; Dr Cole diagnosed chronic PTSD on the basis of the history of stressors related by the applicant, and Dr Walton diagnosed a cardiac neurosis dating from 1998 and clinically qualifying the applicant for delayed onset of PTSD.  Dr Walton concluded that the applicant’s alcohol misuse had had a minimal effect on his family, social and work life.

The respondent submitted that the applicant had enjoyed his army service of 23 years duration, had volunteered for a second term of service in Vietnam and that his current symptomatology was due to the occurrence of atrial fibrillation dating from 1998.  The respondent addressed all the claimed stressors in detail, including the variations in the description of these by the applicant.  The respondent submitted that the claim failed at the first stage of Deledio as the major stressor, the Saigon firefight, had been disproved beyond reasonable doubt.’

31                  The Tribunal then set out its reasoning.  It found that:

‘The applicant raised a hypothesis that his Vietnam service and the stressors he suffered therein have led to a psychiatric disorder and alcohol abuse.  Having examined all the material, the Tribunal concluded this was a reasonable hypothesis.  Based on the applicant’s evidence, there is material pointing to this hypothesis and the hypothesis itself is not fanciful, absurd, untenable, too remote or too tenuous.’

32                  The Tribunal then turned to what it called ‘the agreed applicable SoPs’, to examine whether or not the hypothesis was consistent with the factors in those SoPs.  It said:

‘The prime stressor relied upon by the applicant was the so-called Saigon firefight.  The evidence of Mr Lambey, who was the sergeant in charge of the group at the time of the alleged incident, has unequivocally rejected that they were fired on at any time or that they (the party of some 12 soldiers) returned fire.  In his evidence, the applicant stated that in none of the other four incidents was he or his party fired upon.  In relation to the applicant’s observance of the results of a bus bombing, his evidence before the Tribunal was that the victims of the bombing were all within the bus and not as previously stated in the street and covered with blood.’

33                  After referring to the question of the impact of alcohol use on the applicant’s two marriages, the Tribunal found that the applicant did not meet the requirements of the SoP regarding psychoactive substance abuse or dependence, on his own evidence.  It also found that, as a consequence, the applicant did not meet a factor in the SoP concerning gastro-
oesophageal reflux disease.  Similarly, the Tribunal found that, because he did not meet the definition of alcohol abuse, he did not meet a factor in the SoP relating to hypertension. 

34                  The Tribunal then turned its attention to the issues of PTSD and anxiety disorder.  It said:

‘The applicant’s psychiatric status was the subject of numerous reports from several psychiatrists.  Those who had diagnosed PTSD had done so on the basis of the history given by the applicant relating to the experiencing of severe psychosocial stressors in Vietnam.  The major stressor had been the Saigon firefight, which the Tribunal finds, on the basis of the evidence by Mr Lambey, did not occur.  In addition, the applicant has given evidence that he was never fired upon in any of the other main incidents in Vietnam.  The reports of observing casualties of a bus bomb blast were modified in the course of the evidence, with the applicant stating that the injured and dead were contained within the bus and, presumably, not readily within his line of vision.  On this basis, the severity of the claimed stressors is in doubt.’

35                  The Tribunal found that the applicant did not meet the requirements of factor 2(b)(B), (C) and (D) of the SoP relating to PTSD.  It found that he suffered from anxiety disorder, but that this was cardiac neurosis, dating from 1998, when the applicant suffered atrial fibrillation, a condition for which he was no longer seeking to attribute to his war service.  The Tribunal noted that general anxiety disorder may meet the requirements of the relevant SoP, provided it could be related to service, but said that this was not put to the Tribunal.

The case on appeal

36                  In his notice of appeal, the applicant identified seven questions, described as questions of law.  Each was the subject of a ground of appeal and each ground was developed into an argument in written and oral submissions.  To some extent, the questions posed are not questions of law at all, but questions of fact, which cannot be agitated in an appeal from the Tribunal to this Court:  s 44(1) of the AAT Act.  What may be discerned from the notice of appeal, however, is an issue as to the reasoning process of the Tribunal and whether that process conformed with the requirements of s 120 and s 120A of the VE Act, as elucidated by the Full Court in Deledio.  It is therefore necessary to examine the steps in the reasoning of the Tribunal and to compare them with the requirements of ss 120 and 120A and with the steps referred to in Deledio.

37                  At the outset, one point needs to be understood.  The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned.  The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service.  The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other.  There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified.  Their identification is not one of the steps referred to in Deledio. 

38                  The question, then, is what is the standard by reference to which the decision-maker is to determine whether the requisite injury, disease or death exists or has occurred, and whether operational service was rendered by the veteran?  Section 120(1) of the VE Act appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.  Only if those facts exist can there be a question whether there is a reasonable hypothesis connecting them.  It must follow that the question whether those elements exist is not part of the reasonable hypothesis, but must be determined antecedently to the formation of the hypothesis.  This reasoning suggests that what applies to the determination of the question whether a finding should be made of injury, disease or death, and of operational service, should be approached by reference to s 120(4).  In other words, the decision-maker should only make a finding that an injury, disease or death exists or has occurred, or that a veteran rendered operational service, if reasonably satisfied that those things occurred.  By authority, it has been determined that this means satisfied on the balance of probabilities.  See Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

39                  Ordinarily, it will not be difficult to determine whether it is more probable than not that a veteran is suffering, or has suffered, an injury or disease.  Even if there should be a conflict of medical evidence, the decision-maker will resolve that conflict in the ordinary way.  There may be cases in which the very question whether an injury or disease has been suffered is itself bound up with the question of connection with war service.  PTSD provides an example.  It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event.  There are, therefore, two questions.  One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD.  The second is whether the traumatic event occurred.  Of course, there might be more than one possible traumatic event, and there might be a question as to which of such events is responsible for the condition.  If one or more of the possible traumatic events is not associated with war service, the decision-maker will have to resolve the question whether the symptoms result from the event or events associated with war service or the other event or events.  For the purposes of the present discussion, that kind of case can be ignored.  The important issue is the proper approach to determining whether a veteran is suffering from war-caused PTSD, when the occurrence of a traumatic event is unclear.

40                  More than one process of reasoning is possible.  The decision-maker might approach the problem by first considering whether, on the balance of probabilities, the traumatic event occurred as part of war service and whether it has resulted in the veteran suffering PTSD.  If satisfied on the balance of probabilities as to these facts, the decision-maker would no doubt find that there was a reasonable hypothesis connecting the PTSD with the veteran’s operational service and that the hypothesis was sustained by reference to the relevant SoP and was not excluded beyond reasonable doubt.  It seems impossible to assume that, if the decision-maker were reasonably satisfied on the balance of probabilities that a traumatic event experienced during operational service led to the PTSD, there could be anything other than a reasonable hypothesis, sustained by reference to the PTSD SoP, and not excluded beyond reasonable doubt.  The steps required by Deledio would be satisfied without difficulty.  On the other hand, if the decision-maker were not satisfied on the balance of probabilities that a traumatic event occurred during war service, resulting in PTSD, then the case would never reach the stage of the application of the steps in Deledio, because no question of a connection between PTSD and operational service could arise.  There would be no finding of PTSD.

41                  The other possible process of reasoning is to say that all questions of connection between operational service and PTSD, including questions that are part of the process of determining whether PTSD has been suffered, are to be determined on the reasonable hypothesis basis, required by s 120(1).  On this basis, the decision-maker would only apply the balance of probabilities standard to a determination of what symptoms the veteran concerned suffered, and whether those symptoms were consistent with a finding of PTSD.  The question whether there was PTSD would be determined on the ‘reasonable hypothesis’ basis, using the four steps referred to in Deledio.  Thus, the first step would be to ask whether the symptoms suffered by the veteran, in conjunction with the other material, raised a reasonable hypothesis of a connection between those symptoms and a postulated traumatic event, and therefore a reasonable hypothesis that the veteran suffered PTSD.  On this basis, the question of a connection, and the question whether the relevant traumatic event occurred at all, would be dealt with only once in the process of reasoning, and a finding favourable to the veteran would be required unless the material demonstrated beyond reasonable doubt that the connection did not exist or that the traumatic event did not occur. 

42                  To determine which of these two processes of reasoning is the appropriate one, it is necessary to look to authority.  An examination of Byrnes v Repatriation Commission (1993) 177 CLR 564 might suggest that the second process of reasoning is the correct one.  That case concerned a veteran who claimed to be suffering cervical and thoracic spondylosis as a result of an injury suffered by diving into a shallow swimming pool, while in Townsville during his war service.  There was some inconsistency between the veteran’s account of the incident and the records relating to it.  On behalf of the Commission, the submission was put to the High Court of Australia that, without evidence that the veteran had sustained a severe injury to his neck, the material did not point to facts which, if true, would support a hypothesis put forward by a particular medical practitioner that the incident was the cause of the condition.  The High Court of Australia rejected this submission, saying at 571:

‘the appellant’s claim was not dependent on proof that he had sustained a severe injury.  The sustaining of a severe injury was part of the hypothesis upon which the appellant relied to support his case.  He testified that he had dived into a pool and injured his neck, causing him to be hospitalized.  This was the factual foundation for the hypothesis that the dive had caused a severe ligamentous injury to his neck and perhaps to a disc.  Because of ligamentous laxity, movement of the cervical spine had increased.  This had caused early degenerative changes which had resulted in the appellant’s spondylosis.  Furthermore, the strain on the appellant’s neck had been further increased by his naval work as a stoker.

If the appellant had been able to prove that he sustained a severe injury to his neck, part of the hypothesis would have been proved.  Indeed, proof of a severe injury would have been the factual foundation of another hypothesis leading to the same conclusion but with a higher degree of probability than the hypothesis upon which the appellant was forced to rely.  Similarly, proof beyond reasonable doubt that the appellant had not suffered a severe injury would have disproved the hypothesis put forward by Dr. Rowden.  In the absence of proof that the appellant had or had not sustained a severe injury, however, his case had to be determined by examining whether it was a reasonable hypothesis that his spondylosis was caused by an injury to his neck which occurred when he dived into a shallow pool causing him to be hospitalized for three days.  His case could succeed even though there was no evidence that the 1943 incident had resulted in severe injury.  Sustaining severe injury was part of the hypothesis; it was not a matter for proof or evidence in his case.’

43                  Despite what appears from Byrnes, a subsequent line of authority of the Full Court of this Court might be taken to suggest that the first process of reasoning alone is the correct one.  In Repatriation Commission v Cooke (1998) 90 FCR 307, the Full Court referred to Byrnes.  At 312, the Court said:

‘First, the language of s 120(1) and (3) is so clear as to not raise any doubt on the point.  Secondly, any suggested illogicality disappears when one focuses on the task in hand.  In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease.  The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century.  It makes very good sense, in our opinion, to apply, as s 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question.’

44                  The Full Court overruled Preston v Repatriation Commission (1993) 45 FCR 214, in which a single judge had held that the beyond reasonable doubt standard, prescribed by s 120(1) of the VE Act, should be applied to the question whether the veteran concerned was suffering from the claimed disease. 

45                  In Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200, another Full Court was invited to depart from Cooke.  The Court refused to do so, holding that the appropriate standard for determining whether the veteran was suffering from the claimed condition was the standard in s 120(4) of reasonable satisfaction.  In doing so, the Full Court approved the analysis undertaken by Weinberg J in Repatriation Commission v Gosewinckel [1999] FCA 1273 (1999) 59 ALD 690. 

46                  Finally, in Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 70 ALD 622, another Full Court followed Budworth.  At [54] – [55], the Full Court said:

‘Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused.  When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act:  see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15]; 66 ALD 285 at 289. 

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 in force in respect of the disease.  The diagnosis of that disease, and the determination of whether or not there is an SoP 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 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.’

47                  It should be noted that Benjamin was a case involving a suggestion that the veteran suffered from PTSD.  At [58], the Full Court noted that the Tribunal had applied the correct standard by concluding that it was not reasonably satisfied that the veteran was suffering from PTSD.

48                  It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities.  That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt.  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.  Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation.  As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.

49                  It may be that the decision-maker’s task does not end even if he or she is not satisfied on the balance of probabilities that the veteran does not suffer from PTSD.  The disease from which the veteran suffers might be characterised differently.  As the Full Court said in Budworth at [19]:

‘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…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).’

50                  In determining whether the veteran suffers from a disease, the decision-maker might be satisfied on the balance of probabilities that the veteran suffers from a collection of symptoms, which may or may not amount to PTSD.  In that case, it will be necessary for the decision-maker, in accordance with the second process of reasoning I have identified above, to consider whether the requisite connection exists.  When the decision-maker is reasonably satisfied that the veteran has a condition, which might or might not amount to PTSD, depending upon whether it resulted from a traumatic event, that condition might itself amount to a disease, for the purpose of the application of the Deledio steps.  The decision-maker may be required to come to the conclusion that the condition identified was in fact PTSD, by the operation of the Deledio process of reasoning.  If this were not the case, there would be no point in having, in the SoP relating to PTSD, any reference to the factor of ‘experiencing a severe stressor’.  That factor would be present in all cases in which the decision-maker reached the stage of reasonable satisfaction that PTSD was present and that the traumatic event causing it was experienced during operational service.  Even in a case in which it is clear that PTSD exists, but the issue is whether it was caused by a traumatic event experienced during operational service, or by a traumatic event experienced at another time, it is difficult to see how a decision could be made that the material pointed to one rather than the other, beyond reasonable doubt.  This approach accords with the policy underlying s 120 of the VE Act, to which the Full Court in Cooke referred, namely that the reverse beyond reasonable doubt standard of proof should apply to the determination of the facts of war-time events, which might have occurred many years before the decision is made, and for which records might be incomplete.

51                  The present case was one in which, apparently, the Tribunal was not satisfied on the balance of probabilities that the applicant suffered from PTSD.  It was a case in which it might have been said that there was material at least suggesting that the applicant had a psychiatric condition that could have been recognised as PTSD, if the requisite traumatic event had been found to have occurred.  It was a case in which the applicant could have been found (and was found by the Tribunal) to have a psychiatric condition, but in consequence of the onset of his atrial fibrillation, which was conceded not to be war-caused, rather than in consequence of any traumatic event experienced during his operational service.

52                  If the Tribunal was not satisfied on the balance of probabilities that the applicant suffered from PTSD, it was therefore necessary for the Tribunal to decide whether he was suffering from a collection of symptoms amounting to a disease, without necessarily attaching a label to that collection.  The Tribunal was obliged to decide this question to its reasonable satisfaction, ie on the balance of probabilities.  If it found that the applicant was suffering from such a collection of symptoms, the Tribunal was then bound to apply the four steps of reasoning referred to in Deledio.  It was bound to consider whether the material pointed to a hypothesis, connecting the collection of symptoms with the circumstances of the particular service.  The Tribunal was then to look at any relevant SoP, to see whether the hypothesis fitted the ‘template’ in an SoP, for the purpose of determining whether the hypothesis was a reasonable one.  If so, the Tribunal was bound to determine whether the material excluded the hypothesis beyond reasonable doubt, because the facts upon which the hypothesis depended did not exist.  It is necessary to turn to the Tribunal’s reasons again, to see whether it followed this course. 

The Tribunal’s approach

53                  Nowhere in its reasons for decision does the Tribunal appear to have expressed a finding that the applicant suffered from any disease or condition.  There is no statement as to whether the Tribunal had or had not reached a stage of reasonable satisfaction that the applicant was so suffering.  In the paragraph of the Tribunal’s reasons for decision, which I have quoted in [31], the Tribunal seems to have assumed that it was only necessary for the applicant to raise a reasonable hypothesis that he was suffering from a disease.  The Tribunal found that the applicant had raised such a hypothesis as to ‘a psychiatric disorder and alcohol abuse.’

54                  This assumption was incorrect.  As I have said, the first task of the Tribunal, before it embarked on the steps referred to in Deledio, was to decide whether it was reasonably satisfied that the applicant was suffering from a disease, even if, as the Full Court in Budworth said at [19], the Tribunal only identified the collection of relevant symptoms which it was satisfied constituted the disease which the appellant had contracted.  It was not necessary for the Tribunal to name the disease, or attach a traditional medical label to the collection of symptoms.  It was necessary, however, for the Tribunal to make a finding as to whether some disease was suffered.  At that stage, the question of a hypothesis, or its reasonableness, did not arise. 

55                  The adoption of this incorrect assumption may have been a matter in favour of the applicant, rather than against him.  This is because it seems to involve the Tribunal making an assumption, in his favour, that he did suffer from a psychiatric condition and from alcohol abuse.  By itself, this error would not justify allowing the applicant’s appeal.  He was the beneficiary of the error.  There is relevant harm done by the error. 

56                  The making of this initial error, however, seems to have led the Tribunal into further error.  The Tribunal does not appear to have recognised that the purpose of examining the material before it against the applicable SoPs was, as the Full Court in Deledio said in relation to step three, to form an opinion as to whether the hypothesis raised was a reasonable one.  The Tribunal expressed the view that the hypothesis was a reasonable one before it went to the SoPs. 

57                  As was made clear in Deledio, particularly in relation to the third step of the process, the purpose of examining the material by reference to any applicable SoP is to test the reasonableness of the hypothesis, which is a hypothesis as to a connection.  The Tribunal seems to have regarded its function, when comparing the material before it to the SoPs, as including making findings of fact.  That is to say, the Tribunal embarked on a process of comparing the SoPs with the facts as it found them, rather than with a hypothesis as to the connection between a known period of operational service and an established condition.  A determination of the facts obviously belonged to the fourth step in the Deledio process, and not to the third step. 

58                  In its fact finding, the Tribunal did not apply the correct standard of proof.  It did not recognise that, unless it could be satisfied beyond reasonable doubt as to the facts supporting the hypothesis and linking the hypothesis to the factors in the ‘templates’ of the SoPs, it was bound to find that the hypothesis upheld the necessary connection.  Instead, the Tribunal appears to have engaged in a fact-finding exercise of the ordinary kind, determining for itself whether, on the evidence, the facts were as the applicant had suggested at various times.  In one respect, when it said ‘the severity of the claimed stressors is in doubt’, the Tribunal appears to have reversed the required standard of proof.  Only if it could be satisfied beyond reasonable doubt that the stressor events had not occurred, or had not had the necessary traumatic effect on the applicant, could the Tribunal have reached the conclusion that the hypothesis as to a connection between any condition suffered by the applicant and his operational service was not sustained.  It was not sufficient for the Tribunal just to decide which version of the evidence it preferred. 

Conclusion

59                  When taken together, these errors of the Tribunal are sufficient to warrant allowing the appeal.  The applicant has not had a chance to have his case dealt with by the Tribunal by a proper process of reasoning.  It might be that he turns out to fail at the first hurdle.  When it comes to consider whether it is reasonably satisfied that the applicant suffers from symptoms that, given the right traumatic event, might amount to PTSD, the Tribunal might well find on the material before it that it is not so satisfied.  That is not a matter for determination by this Court, which deals only with questions of law in appeals of this kind.  In any event, the applicant is entitled to have a proper consideration by the Tribunal, following the four steps referred to in Deledio, in respect of any condition from which the Tribunal is reasonably satisfied that he suffers.  The Tribunal must consider whether the applicant suffers from hypertension, sleep apnoea, gastro-oesophageal reflux disease, ‘nervous condition’ and substance abuse.  If it is reasonably satisfied that he suffers from any of those conditions, or from a collection of symptoms capable of amounting to any of those conditions, it must consider whether there is a hypothesis connecting that condition with the applicant’s operational service.  If so, it must ascertain whether there is a relevant SoP and test the hypothesis against the factors referred to in that SoP, for the purpose of determining whether the hypothesis is reasonable.  Only if the hypothesis fits the ‘template’ in a relevant SoP will the Tribunal be called upon to deal with issues of fact.  Only if satisfied beyond reasonable doubt that the material before it does not establish the facts necessary to sustain the hypothesis will the Tribunal be entitled to dismiss the applicant’s claim. 

60                  In view of this conclusion, it is unnecessary for me to deal with other arguments raised by the applicant in this proceeding.  On the basis of the errors I have identified, the appeal must be allowed.  In the exercise of the powers given to the Court by s 44(5) of the AAT Act, the decision of the Tribunal must be set aside and the case must be remitted to be heard and decided again by the Tribunal.  As is usual in cases such as this, there should be a direction that the Tribunal which hears and decides the case again be constituted differently from the Tribunal from which the appeal has been brought.  In accordance with the principle that costs should follow the event, the Commission should be ordered to pay the applicant’s costs of the appeal. 

Associate:

Dated:              18 October 2004