FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Codd [2005] FCA 888

REPATRIATION COMMISSION  v  KATHLEEN M CODD

V 1152 of 2004

RYAN J

30 JUNE 2005

MELBOURNE

On appeal from the Veterans’ Appeals Division of the Administrative Appeals Tribunal

THE COURT ORDERS THAT:

1.         The application by way of appeal be allowed.

2.         The decision of the Veterans’ Appeals Tribunal made on 20 August 2004 be set aside.

3.         The matter be remitted to the Tribunal to be heard and determined according to law.

4.         There be no order as to costs.

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

On appeal from the Veterans’ Appeals Division of the Administrative Appeals Tribunal

REASONS FOR JUDGMENT

Introduction

1                     This is an application by way of appeal from a decision of the Veterans’ Appeals Tribunal (“the Tribunal”) made on 20 August 2004.  By that decision, the Tribunal set aside the decision of the applicant Repatriation Commission that the death of the late Ronald Kevin Codd (“the veteran”) was not war-caused and substituted a decision, that the death of the veteran was war-caused.

Background facts

2                     The veteran had served in the Australian Army from 5 October 1942 until 9 August 1946.  Between 2 January 1945 and February 1945 he served with 2/4 Dental Unit.  He was then diagnosed with cognitive nystagmus and returned to Australia in February 1945.  His service had been with the 2/1^st Field Ambulance Service to which was attached a Dental Unit.  Among the veteran’s war-caused disabilities were infected tonsils, chronic eczema and mild labile hypertension.

3                     On 7 December 1968 the veteran was killed when a timber truck which he was driving was struck by a train at a level crossing at Benalla in country Victoria.  At a subsequent coroner’s inquest there was evidence that the veteran’s view of the approaching train had been impaired or blocked by the rising sun.  There was evidence to the effect that the concentration of alcohol in the veteran’s blood at the time of the collision was equivalent to that which would have been brought about by the consumption of one seven-ounce glass of beer.  There was also evidence before the Tribunal from the respondent who had met the veteran in 1950 and married him on 16 August 1952.  That evidence included these passages;

‘I understand from talking to Ron's family that he was a non-drinker before the war. I understand that he commenced drinking during his service. It is my recollection that he was a nervy man when I met him. I recall that from the beginning of our marriage he was a restless sleeper and suffered frequent nightmares. He would scream in his sleep words such as "don't, don't" and "here it comes, here it comes". He was a man who was easily upset and sudden noises and the loud noise of children irritated him.

Ron did talk to me about his war service on occasions. He seemed particularly upset by his experiences as a Stretcher Bearer in New Guinea and told me of incidents when he carried bodies and wounded men who had been shot for long distances.

Ron suffered a nervous twitch which involved jerking his head. He was often verbally aggressive-particularly if he consumed too much liquor.

Ron was a regular drinker when I met him; he drank every day. I noticed that he drank excessively if he was stressed. I believe that he self-medicated on alcohol in order to settle his nerves. He frequently drank to excess during our marriage. He tended to become morose when intoxicated.

Ron's drinking caused a lot of disharmony and we had many disputes over it. These disputes did not cause him to change his ways. Not only was he morose and abusive when intoxicated but I was also concerned that he squandered a significant proportion of his wage on alcohol so that I needed to obtain employment in order to support the family. There were a number of times when I considered leaving Ron.

On the evening before Ron's death he came home late from the Hotel. I gathered that he had been drinking for some hours. I was in bed when he arrived home at about 10.30pm. He was intoxicated. He got into bed beside me and then became very agitated about a blow fly which was buzzing around our bedroom. One of his superstitions had been that a blow fly flying around after going to bed indicated a forthcoming death. I recall that I got out of bed in order to kill the fly with insecticide because he was so restless. I then fell asleep.

… … …

My husband had continued to suffer nightmares and restlessness at night right up until the time of his death.

… … …

Ron did suffer hypertension which was accepted as war caused. He took medication for that condition and his treating doctor at the time was Dr. J. Alexander of Nunn Street, Benalla. Ron did on occasions complain to me of feeling light-headed and sometimes this symptoms. came on when he was simply sitting down. I believe that that symptom may be related to his hypertension. It may well be that he suffered such an episode immediately before arriving at the intersection such as to impair his concentration.

I also believe that his war caused anxiety/nervous condition may have aggravated the condition which caused him to jerk his head leading to a loss of concentration and that this may have also played a part in the collision.’

4                     The hypotheses advanced before the Tribunal on behalf of the respondent, who is the veteran’s widow, were;

·        Anxiety – the service of the deceased had caused the veteran to develop an anxiety condition which contributed to impairment of concentration, lack of sleep, nightmares and restlessness all of which contributed to the collision.

·        Alcohol consumption – as a consequence of his service, the veteran consumed alcohol excessively which in turn led to an impairment of concentration contributing to the collision.

·        Aggravation of nystagmus – the deceased suffered from nystagmus and jerky movements of his head which were aggravated by anxiety, and the nystagmus and head jerking contributed to the fatal collision.

·        The combination of anxiety, alcohol and nystagmus – as a result of service, the veteran had commenced to consume alcohol excessively by way of self medicating; the nystagmus and jerking of his head had been aggravated by anxiety; and the combined effects of alcohol consumption, aggravation of nystagmus and head jerking had resulted in impaired concentration which contributed to the fatal collision.

·        Hypertension – hypertension (accepted as war-caused) caused the deceased to suffer from light-headedness, and these features, together with impairment of concentration (said to arise out of being light headed) contributed to the fatal collision.

5                     There were various expressions of expert medical opinion before the Tribunal.  Of the experts who tended to support the contention of the applicant, Professor Harper, a cardiologist, stated that reported episodes of the veteran’s dizziness would have been due to nystagmus and not to hypertension.  Professor Harper also opined that;

·        The veteran’s level of blood alcohol would not have aggravated his blood pressure and caused impairment of concentration.

·        “Impairments of concentration and senses are rarely due to transient rises in blood pressure, but obviously alcohol excess in itself can cause impairment of concentration and senses as can acute anxiety”.

·        there was no evidence that the veteran’s blood pressure was a cause or contributory cause of his fatal accident.

6                     The first of two specialist psychiatrists whose evidence was before the Tribunal was Dr Holwill, who expressed opinions that;

·        The veteran had a history of moderate to severe substance abuse (alcohol) attributable to his Army service.

·        The respondent had described symptoms suggestive of post-traumatic stress disorder (“PTSD”) or generalised anxiety disorder (“GAD”) in the veteran.

7                     However, the second specialist psychiatrist, Dr Whitaker, opined that;

·        “There were no grounds for excluding aggravation of his emotional disorder by war stress”.

·        “The mere fact that there [was] no reference” in the veteran’s file regarding his sleep, or the content of his dreams, or the existence or otherwise of flashbacks “indicates the deficiency of the record”.

·        The veteran’s symptoms (as described by the Respondent) were “sufficient to base a diagnosis of war aggravated anxiety reaction”.

·        “There was a manifest anxiety state and labile hypertension at the time of the veteran’s discharge; real symptoms of that anxiety state which commenced on service persisted for many years after the war; self-medication with alcohol was evident to the end of the veteran’s life; and the combined effects of alcohol intake, nystagmus and head jerking while driving into the sun would have been likely to substantially impair concentration and attention thus contributing to the veteran’s failure to stop at the level crossing”.

8                     The veteran had served in New Guinea from January 1945 until the Japanese surrender in August 1945 and, according to the respondent, had been involved in “stretcher bearing duties”.  While not admitting that assertion, the applicant had conceded that “the veteran may have experienced a severe psychological stressor” while serving in New Guinea between January and August 1945.

9                     The Tribunal found on the balance of probabilities that the veteran had suffered GAD within the meaning of Statement of Principle (“SoP”) 1 of 2000.

Legislation

10                  Subsections 13(1) and (2) of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”) provide that the Commonwealth is liable to pay a pension to the dependants of a veteran whose death was war-caused.  The circumstances in which a veteran’s death is taken to be war-caused are set out in s 8(1) of the VE Act which provides, so far as is relevant;.

‘Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

… …

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

… …

(d)   in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or … …’

11                  The standard of proof to be applied in resolving the question of whether a veteran had been suffering from an injury or disease (which might connect the death with service) and the diagnosis of that injury or disease is set out in s 120(4) of the VE Act.

12                  Subsection 120(4) provides;

‘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.’

13                  The effect of s 120B on s 120(4) in its application to the present case is brought about by s 120B(3) which provides;

‘In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a)       the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)       there is in force:

(i)        a Statement of Principles determined under subsection 196B(3) or (12); or

(ii)       a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.’

14                  The standard of proof to be applied to the question of whether a death is war-caused or not is prescribed by ss 120(1) and (3) of the VE Act;

15                  Subsection 120(1) provides;

‘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.

Note: This subsection is affected by section 120A.’

16                  And s 120(3) provides;

‘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.’

17                  Subsection 120(3) is affected by s 120A, in particular, in this case, ss 120A(1) and (3) which provide;

‘(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;

(b)        a claim under Part IV that relates to:

(i)         the peacekeeping service rendered by a member of a      Peacekeeping Force; or

(ii)       the hazardous service rendered by a member of the Forces.

Note 1:     Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2:    For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

… …

(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.’

The Statement of Principles

18                  Clauses 4 and 5 of the SoP for GAD recite, under the headings “Factors that must be related to service” and “Factors”;

‘Factors that must be related to service

4.         Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5.         The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person's relevant service are:

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

(i)      being a prisoner of war before the clinical onset of anxiety disorder; or

(ii)       experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or

(iii)      having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or

(iv)       having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder; or

(v)        experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or

(vi)       having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or

(vii)      having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or

(b)       for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder; or

(c)        inability to obtain appropriate clinical management for anxiety disorder.’

19                  Clause 8 of the SoP for GAD defines “generalised anxiety disorder” to mean “a psychiatric disorder with the following features” (which are derived from the fourth edition of the Diagnostic Statistical Manual (DSM-IV);

‘A.       Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities; and

B.         The person finds it difficult to control the worry; and

C.        The anxiety and worry are associated with three or more of the following six symptoms, with at least some of the symptoms present for more days than not during the previous six month period:

(1)       restlessness or feeling keyed up or on edge

(2)       being easily fatigued

(3)       difficulty concentrating or mind going blank

(4)       irritability

(5)       muscle tension

(6)       sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)

D.        The focus of the anxiety or worry is not confined to features of an Axis I disorder, e.g., the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relatives (as in Separation Anxiety Disorder), gaining weight (as in Anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Posttraumatic Stress Disorder.

E.         The anxiety, worry or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

F.         The disturbance is not due to the direct physiological effects of a substance (e.g., hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.’

20                  Clause 8 of the SoP also contains, amongst others, the following further definitions;

‘“anxiety due to a general medical condition” means a psychiatric disorder where:

A.         Prominent anxiety, panic attacks, obsessions or compulsions predominate in the clinical picture; and

B.         There is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition; and

C.      The anxiety, panic attacks, obsessions or compulsions are not better accounted for by another mental disorder; and

D.        The anxiety, panic attacks, obsessions or compulsions do not occur exclusively during the course of a delirium; and

E.         The anxiety, panic attacks, obsessions or compulsions cause clinically significant distress or impairment in social, occupational, or other important areas of functioning;

… … …

“death from anxiety disorder” in relation to a person includes death from a terminal event or condition that was contributed to by the person's anxiety disorder;’

The Tribunal’s decision

21                  The Tribunal summarised, at [29] of its reasons for decision, the evidence which it regarded as showing that the veteran had manifested the symptoms of GAD.  It there said;

‘More specifically it was alleged that the material points to the veteran suffering from an anxiety disorder by reason of his service as a stretcher bearer, upon the observations of Mrs Codd of her husband being restless and "nervy", suffering from frequent nightmares, being easily upset and irritated by noise. Additionally it was noted that there was evidence of members of the deceased's family observing him to be “changed” upon his discharge from service.’

22                  In rehearsing the submission advanced on behalf of the veteran’s widow which relied on that evidence, the Tribunal observed, at [33] of its reasons;

‘In concluding this part of the submissions upon the anxiety hypothesis it was submitted that the Tribunal could not be satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the anxiety condition contributed to death.’

23                  The Tribunal also relied upon the reports of the two psychiatrists, Drs Holwill and Whitaker in concluding that veteran suffered from GAD at the time of his death.  At [64]-[65] of its reasons, the Tribunal stated;

‘64  Dr Holwill in his report of 22 April 2002 (T-documents p107) decided that upon the history given to him by Mrs Codd, the symptoms of the deceased were suggestive of PTSD or generalised anxiety disorder.  Dr Whitaker in his report of 21 August 1990 made a diagnosis, again on the history given to him by Mrs Codd, of “aggravated anxiety reaction” (T-documents p79).  Doctors Holwill and Whitaker are both practising psychiatrists.  In a Statement of Facts and Contentions lodged prior to the commencement of the hearing the respondent (paragraph 37) “accepts that there is material pointing to the applicant having experienced “a severe psychosocial stressor” . . . whilst acting as a stretcher bearer in New Guinea”.

65    In my view the concession made by the respondent is properly and fairly made.  I am satisfied also that Doctors Whitaker and Holwill have arrived at a diagnosis consistent with the information provided to them from Mrs Codd and from a number of documents that have been lodged in these proceedings.  This finding is also permissible having regard to the evidence of Mrs Codd during the hearing of this review.  I am satisfied and find as a fact that upon the balance of probabilities, the applicant did suffer an anxiety condition, which was present at the date of his death may be properly described as “generalised anxiety disorder”, thereby attracting consideration of SoP Instrument No. 1 of 2000.’  (Emphasis added).

24                  The Tribunal then reproduced at [66] of its reasons an extensive extract from Repatriation Commission v Deledio (1998) 83 FCR 82 which, it noted, ordained the method to be followed by decision-makers required to apply SoPs.  It then concluded that the material before it, on examination, raised a hypothesis connecting the claimed illness, GAD, with the veteran’s war service and that “Stage 2 is obviously satisfied because there is an SoP “in force” namely Instrument No.1 of 2000 entitled “General Anxiety Disorder”; (see [68] of the Tribunal’s reasons). 

25                  The Tribunal next proceeded to consider whether the hypothesis advanced was reasonable.  Its observations under that heading in relation to GAD were;

‘69       The hypothesis will be reasonable if it is consistent with or fits the template of the SoP.  Findings of fact are not required at this stage but the hypothesis as raised must contain at least one of the factors within the SoP which exists as a minimum and which is related to the service of the deceased.

70        It is known that the deceased did not consume alcohol prior to enlistment but upon his discharge he was observed by members of his family and later by his wife as a person who drank alcohol to excess, who had nightmares frequently and which persisted until the time of his death, who would refuse or be reluctant to speak of his operational service and who admitted to consuming alcohol as “self medication”.  The clinical onset therefore of the anxiety disorder would have occurred – at the latest – on the day of discharge from service.  By reason of his service there is material which points to him having experienced a “severe psychosocial stressor” as defined during service.  It therefore follows that the deceased experienced a “severe psychosocial stressor” within two years immediately before the clinical onset of the anxiety disorder.  Dr Whitaker has given a graphic and robust opinion upon the relationship between service and the anxiety state.  Dr Holwill reported that the deceased was “often exposed to gruesome events”.  The remaining part of the definition includes events which are described as examples but, nonetheless, having to carry and evacuate wounded and dead comrades whilst in all probability under risk himself would constitute a “severe psychosocial stressor” as defined.  I am therefore satisfied that the hypothesis as raised above satisfies one of the factors from Instrument No. 1 of 2000, factor 5(a)(ii) which exists as a minimum and which is related to the deceased’s service.

71        Part of this hypothesis concerns an impairment of concentration.  There is material in the medical reports supporting a connection between anxiety and impaired concentration.  Dr Gilligan does not support this connection but this does not deny this part of the hypothesis as being reasonable (refer Bushell).  When all the links or essential elements comprising the hypothesis are considered, the facts as raised point to this hypothesis being reasonable.  It could not be said that the hypothesis is “fanciful, impossible, incredible or not tenable or too remote or too tenuous (refer East v Repatriation Commission (1987) 6 AAR 492).  It is, in my view, a hypothesis which is reasonable because it advances something more than mere possibility.’

26                  The applicant contended, amongst other things, that the Tribunal had erred in law by concluding at [65] of its reasons quoted at [23] above that the material before the Tribunal was capable of supporting a finding on the balance of probabilities that the veteran was suffering from GAD at the time of his death; see s 120(4) of the VE Act.  Alternatively, the applicant submitted that the Tribunal had erred in failing to consider whether the indicia for the diagnosis of GAD in the SoP were met.

What process of reasoning should the Tribunal have followed?

27                  The process of reasoning which a decision-maker is obliged to follow under the Act is to take, in order, the four steps formulated in Deledio.  However, the reasoning in Deledio starts from the premise that the veteran is suffering, or, at the time of his or her death, was suffering, from a disease.  Where it is not common ground as to what (if any) disease is or was suffered by the veteran a first, or preliminary, question must be answered to the reasonable satisfaction of the decision-maker.  That is “From what collection of symptoms is or was the veteran suffering?”;   Repatriation Commission v Cooke (1998) 90 FCR 307 at 310.  While considering this preliminary question, medical labels, commonly understood terms for specific conditions and the elements of any SoP are irrelevant and should be disregarded.  In Repatriation Commission v Hill [2002] FCAFC 192;  69 ALD 581 (“Hill”), a case concerning Post Traumatic Stress Disorder (“PTSD”), it was not in dispute that the veteran suffered from PTSD and so the only question was whether it was war-caused.  However, the Court in Hill made this observation at [63] about the statutory test to be applied in resolving the preliminary question of the existence of a disease;

‘It should be borne in mind that the issue whether a particular disease exists is governed by s 120(4) of the Act, not ss 120(1) and (3).  That is, the issue whether or not a disease exists is to be decided to the reasonable satisfaction of the Commission:  see Repatriation Commission v Cooke at 20 and Gosewinckel at [49].’

28                  As the Full Court observed in Benjamin v Repatriation Commission [2001] FCA 1879;  70 ALD 622 (“Benjamin”) at [52]-[55];

‘52       The second question raised in the appeal concerns the standard of proof that should be adopted by the Tribunal in considering whether any psychiatric problems identified by the Tribunal constitute a war caused disease.  …

… … …

54        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] FCA 1421 paragraph [15].

55        The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran.  If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP 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 … for the purposes of determining whether or not an SoP is in force in respect of that kind of disease … 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.’

29                  Before anything else, the Tribunal must find to its “reasonable satisfaction” that a disease exists;  Repatriation Commission v Budworth (2001) 116 FCR 200 at [14]-[15].  It is not confined to considering only those diseases or conditions contended for by one or other party before it, and should not test the existence of a postulated disease by reference to any SoP while conducting this first inquiry;  see Benjamin at [41] and [48]-[50].  At this first stage it is necessary to determine whether the veteran has a “collection of relevant symptoms”, and not the “nomenclature or … traditional medical label” that may be used to describe them;  Budworth at [19].  (After the symptoms from which a veteran suffers or suffered have been identified, it might be necessary to have regard, in a general and preliminary way, to various SoPs to determine into which of them the identified symptoms fit.  That may occur in taking the second step described in Deledio which is discussedbelow.)

30                  After the preliminary question has been resolved, the next four steps to be taken are those set out as follows by the Full Court in Deledio, at 97-98;

‘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).  … …

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.

3.                  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.’

31                  If the existence of a disease is not in dispute before the decision-maker, then only these four questions are relevant, and the preliminary question does not arise;  see Hill at [61] and [63].

32                  In Hill, a Full Court of this Court, at [53]-[54], made the following observations about the process ordained by Deledio;

‘53       … … in order to satisfy ss 120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP.  In order to satisfy these provisions, the material must “raise” or “point to” such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP. ………

54        … … If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material:  cf East [v Repatriation Commission (1987) 16 FCR 517] at 533.’

33                  The Court in Hill also said at [55], which I take to be relevant to the third step;

‘… … a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP:  see Deledio v Repatriation Commission at 274-275, Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 per Weinberg J, and Connors v Repatriation Commission (2000) 59 ALD 61 at 68-70.’

Did the Tribunal ask the right question?

34                  Ms Macdonnell of Counsel for the applicant submitted that the Tribunal had erred in determining that the material before it was capable of supporting a finding that the veteran was suffering from GAD at the time of his death. 

35                  It was submitted that there is no diagnosis in any of the medical reports that the veteran suffered from GAD.  The highest that the medical evidence goes is the opinion of Dr Holwill that the symptoms described by the veteran’s wife were “suggestive of” PTSD or GAD and the fact that Dr Whitaker made a diagnosis of “aggravated anxiety reaction”. 

36                  The applicant also submitted that the Tribunal had erred by accepting medical evidence of GAD without having regard to the description of that disorder as set out in the SoP (or in DSM-IV);  (see Repatriation Commission v Gosewinckel [1999] FCA 1273;  (1999) 59 ALD 690 per Weinberg J at [55]).  In Gosewinkel, Weinberg J found that the Tribunal had not erred in omitting to deal with each of the diagnostic criteria because his Honour considered that the Tribunal had regard to the prescribed criteria.

37                  Ms Macdonnell distinguished the decision of Weinberg J in Gosewinckel on the basis that his Honour there indicated that it was implicit in the evidence that the veteran met each of the requisite criteria for GAD whereas here, it was submitted, neither medical witness had made any reference whatsoever to the symptoms of GAD as set out in the SoP.  Moreover, Ms Macdonnell contended, there was no evidence before the Tribunal from which it could find on the balance of probabilities that the minimum number of the diagnostic features or symptoms required by the SoP had been manifested by the veteran.

38                  In support of this contention, Ms Macdonnell submitted that the medical evidence before the Tribunal was equally capable, for example, of supporting a diagnosis that the veteran suffered from PTSD for which a different SoP prescribes a quite different set of symptoms.  It was submitted that the only common symptoms in the SoP for GAD and the SoP for PTSD are “irritability”, “difficulty falling or staying asleep” and “difficulty concentrating”.  Further, the symptoms described by Dr Holwill included only “irritability” and evidence of “nightmares” which could possibly have created difficulty falling or staying asleep or restless unsatisfying sleep which may equally have been indicative of PTSD.

39                  In relation to the reliance placed upon the respondent’s evidence at the hearing, the applicant submitted that the respondent had not given any evidence which went to the features of GAD.  For example, the respondent recounted to Dr Holwill that the veteran was always “nervy” by which Dr Holwill said “she meant tense, with a prominent startle response” which is a possible symptom of PTSD but not GAD.  The respondent also gave evidence to the effect that the veteran had not been a drinker before the war but that on his return he drank daily and it was her belief that “He wanted to try and cover things up, forget things”.

40                  Ms Macdonnell also submitted that, although drinking or a desire to forget or avoid may be relevant to PTSD, drinking or wanting to forget are not features of GAD.  The features of GAD are characterised as excessive anxiety or worry (apprehensive expectation).

41                  The applicant also submitted that the Tribunal had erred by basing its finding that the veteran was suffering from GAD at the time of his death on the Commission’s acceptance that there was material “which pointed to the veteran having experienced a ‘severe psychosocial stressor’ … whilst acting as a stretcher bearer in New Guinea”;  (see [64] and [65] of the Tribunal’s reasons at [23] above).  Ms Macdonnell for the applicant submitted that, in the case of GAD, a severe psychosocial stressor is not a feature or symptom of the condition which is relevant to diagnosis.  It was noted, in passing, that the primary feature of the condition PTSD is exposure to, or experience of, a traumatic event of a certain kind.

42                  The respondent submitted that it was open to the Tribunal to find as it did, in reliance on the evidence of Drs Holwill and Whitaker, that the veteran suffered from GAD; (see [64]-[65] of the Tribunal’s reasons reproduced above at [23]).

43                  It was contended by the respondent that the Tribunal was not obliged to “tick off” every feature of “generalised anxiety disorder” specified in cl 8 of the relevant SoP.  The respondent submitted that here, as in Gosewinkel, it was implicit in the evidence before the Tribunal that the veteran met each of the requisite criteria for GAD.

44                  Alternatively, the respondent submitted that it was sufficient for the focus of the Tribunal to be on whether factor 5(a)(ii) of the SoP existed as a minimum.  The respondent submitted that the Tribunal had correctly determined that there was evidence that the veteran had experienced a severe psychosocial stressor within the two years immediately before the clinical onset of the anxiety disorder (see [70] of the Tribunal’s reasons quoted at [25] above).

45                  In the further alternative, it was submitted that it was sufficient for the Tribunal to pay regard, as it did, to the matters set out in [64]-[65] of the Tribunal’s reasons reproduced at [23] above.  The respondent contended that as long as there is in the material some basis of support for the Tribunal’s findings, no error of law can be imputed to the Tribunal; see and compare Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.  Nor, it was submitted, is there any error of law in simply making a wrong finding of fact;  Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.

Resolution

46                  The Tribunal concluded to its “reasonable satisfaction” on the basis of the evidence of Drs Holwill and Whitaker that a hypothesis had been pointed to in relation to the veteran that he had a collection of symptoms corresponding to GAD.  Counsel for the applicant contended that the evidence in those reports is incapable as a matter of law of supporting the Tribunal’s findings.  I accept that the Tribunal made an error of law in concluding that the veteran suffered from GAD because I do not consider that an inference to that effect was reasonably open to the Tribunal on the material before it;  see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358.  Nor was it implicit in the evidence, as it was held to be in Gosewinckel (supra), that the veteran had manifested at least the minimum collection of symptoms constituting GAD.

47                  Without attempting to exhaust the collection of symptoms of GAD of which there was no evidence, it is sufficient to indicate that the material did not afford a basis for concluding that, at the time of his death, the veteran was experiencing excessive anxiety and worry in the sense of apprehensive expectation as required by par A of cl 8 of the SoP.  Mrs Codd’s evidence tended rather to suggest anxiety about past events which led the veteran to drink to excess because “he wanted to forget things” or because he was “ashamed”.  The evidence was sufficient to indicate at least symptoms (1), (4) and (6) of those enumerated in par C of cl 8 of the SoP but it did not suggest, as required by that paragraph that those symptoms were associated with the anxiety and worry (about a future event) mandated by par A of that clause.  Nor did the evidence indicate that at least some of the three symptoms which I have just identified were present for more days than not during the six months preceding the veteran’s death.  As well as failure to indicate that the veteran suffered from anxiety or worry of the requisite kind, the evidence was not capable of excluding his symptoms from having occurred solely during PTSD as required by par D of cl 8 of the SoP.

48                  It may be that the Tribunal was led into the error of law which I have imputed to it by its expression at [59] of its reasons that;

‘The issue of diagnosis is not to be determined pursuant to the SoP (refer Benjamin v Repatriation Commission).’

However, as the passage from Benjamin reproduced at [28] above makes clear, the Tribunal was required to decide to its reasonable satisfaction that a veteran was suffering from a collection of symptoms constituting a particular injury or disease.  In this case, GAD was one of several injuries or diseases postulated on behalf of the veteran’s widow.  Once a postulation of that kind occurs, it is necessary for the decision-maker to have regard to the definition of the injury or disease in the applicable SoP.  That is not to say that the evidence, whether of medical experts or lay observers, has to use the nomenclature which is to be found in the SoP, or, even, that it has to advert to a particular SoP among several conceivably available.  Such usage, mirroring the language of the SoP is particularly not to be expected in medical reports like that of Dr Whitaker in the present case which antedated by ten years the promulgation of the SoP for GAD.  As another Full Court observed in Budworth (supra) at 207 [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 of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label “Post Traumatic Stress Disorder”, may turn on questions of causation or aetiology.  Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).’

49                  However, even if I be wrong in holding that there was no sufficient evidence to support a finding that the veteran suffered from GAD, the Tribunal also failed to consider whether the hypothesis raised by the applicant was reasonable, that is, whether it fitted with the ‘template’ to be found in the SoP.  In particular, it is impossible to discern from the evidence relied on by the Tribunal how one of the factors set out in cl 5 of the SoP must have been related to any relevant service rendered by the veteran.  Because of the concession on behalf of the applicant that the veteran may have suffered a severe psychological stressor between January and August 1945, the Tribunal appears to have assumed that factor (a)(ii) of cl 5 of the SoP existed.  However, that factor required the clinical onset of anxiety disorder not later than two years after the veteran experienced the severe psychological stressor.  In this case that must have been not later than August 1947.  The absence of any evidence at all of relevant symptoms before 1950 signifies a separate and additional error of law by the Tribunal.

Conclusion

50                  For the reasons which I have endeavoured to explain the application by way of appeal should be allowed and the decision of the Tribunal of 20 August 2004 must be set aside.  The matter will be remitted to the Tribunal to be heard and determined according to law.  Ms Macdonnell did not seek an order that the respondent pay the applicant Commission’s costs.  In the circumstances, I consider that the applicant was correct in taking that stance.  There will therefore be no order as to costs.

Associate:

Dated:              30 June 2005