FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Warren [2007] FCA 866

VETERAN’S AFFAIRS – appeal from a decision of the Administrative Appeals Tribunal – disability pension – claim for pension for post-traumatic stress disorder and alcohol dependence – operation of Statement of Principles and ss 120, 120A, 196B of the Veterans’ Entitlement Act 1986 (Cth) – whether respondent suffers an injury or disease – whether necessary for decision-maker to have regard to the definition of the injury or disease in the applicable Statement of Principles – function and application of Statement of Principles and DSM-IV – whether Tribunal entitled to act upon a concession – whether insufficiency of evidence to permit finding – inconsistency of evidence.  

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13(1)(b), 120, 120A, 196B(2)

Benjamin v Repatriation Commission (2001) 70 ALD 622 Cited

Fogarty v Repatriation Commission [2003] FCAFC 136 Cited

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 Cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Cited

Nation v Repatriation Commission [No 2] (1993) 18 AAR 273 Cited

Perpetual Trustee Company (Canberra) Limited v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 Considered

Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 Cited

Re Minister for Immigration and Multicultural Affairs;  Ex parte S20/2002 (2003) 198 ALR 59;  [2003] HCA 30 Cited

Repatriation Commission v Budworth (2001) 116 FCR 200 Cited

Repatriation Commission v Codd [2005] FCA 888 Cited

Repatriation Commission v Cooke (1998) 90 FCR 307 Cited

Repatriation Commission v Deledio (1998) 83 FCR 82 Applied

Repatriation Commission v Gosewinckel (1999) 59 ALD 690 Considered

Repatriation Commission v Hill (2002) FCAFC 192;  69 ALD 581 Cited

REPATRIATION COMMISSION v MICHAEL ANTHONY WARREN

QUD 298 OF 2006

KIEFEL J

8 JUNE 2007

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

1                     On 15 October 2002 the respondent, Mr Warren, made a disability claim under the Veterans’ Entitlements Act 1986 (Cth) (‘the VEA’).  His disability was described as ‘Stress, Depression and Anxiety’.  A symptom was said to be ‘alcoholism’.  The respondent claimed to have been diagnosed as suffering from ‘war caused PTSD [post traumatic stress disorder] and major depression’. The conditions were said to have their origin in Mr Warren’s service in Vietnam.  His claim was rejected by the Repatriation Commission.  A delegate determined that ‘post traumatic stress disorder and alcohol dependence or alcohol abuse are not related to service’.  That rejection was affirmed by the Veterans’ Review Board.  A Deputy President of the Administrative Appeals Tribunal set the Commission’s decision aside and substituted a determination that the respondent’s conditions of post traumatic stress disorder and alcoholic dependence were each war-caused diseases within the meaning given to that expression by s 9 of the VEA, and remitted the matter to the Repatriation Commission for determination of the rate of the pension.  The Commission appeals from that decision.  Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) limits such an appeal to questions of law. 

2                     A summary of the respondent’s service appears in the Tribunal’s reasons.  He served in the Australian Regular Army between 1963 and 1972 and saw operational service in South Vietnam between January 1971 and March 1972 with the 17^th Construction Squadron Workshop and 198 Works Engineers.  The respondent was based in Nui Dat when he arrived in South Vietnam and then in Vung Tau in August 1971.  He returned to Nui Dat in September 1971 and from November 1971 to March 1972 he was based in Van Kiep.  He held the rank of Sergeant on his discharge in June 1972.

STATUTORY AND OTHER PROVISIONS

3                     Section 13(1)(b) of the VEA provides that where a veteran ‘has become incapacitated from a war-caused injury or a war-caused disease’ the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the veteran.  This case involves mental conditions or disorders.  ‘Disease’ is defined to include any physical or mental ailment or disorder;  and ‘incapacity’ of a veteran ‘from a war-caused disease’ is a reference to the effects of the disease.  Section 9 provides that a disease contracted by a veteran shall be taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service, amongst other things.

4                     Sections 120 and 120A are concerned to provide a method of determining whether there is a link between an injury or disease and operational service, and in that process they provide a standard of proof to be applied towards the ultimate question raised by s 120(1) – whether the injury or disease was war-caused.  Section 120(1) provides:

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

5                     Subsection 3 of that section provides:

‘(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.’

6                     Section 120A applies in this case.  Subsection (3) of that section provides:

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

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

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

that upholds the hypothesis.’

7                     Section 196B(2) provides, with respect to the determination of a Statement of Principles:

‘(2)      If the Authority 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:

(a)       operational service rendered by veterans; or

(b)       peacekeeping service rendered by members of Peacekeeping Forces; or

(c)       hazardous service rendered by members of the Forces;

            the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)       the factors that must as a minimum exist; and

(e)       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.’

8                     The Repatriation Medical Authority has determined a Statement of Principles (‘SoP’) under subs 196B(2) with respect to each of the conditions here relevant:  post traumatic stress disorder  (‘PTSD’) and alcohol dependence.  ‘PTSD’ is dealt with by a SoP being Instrument No 3 of 1999.  Under the heading ‘Kind of injury, disease or death’, PTSD or death from PTSD is identified.  Paragraph 2(b) explains that, for the purposes of the SoP, ‘PTSD’ means ‘a psychiatric condition meeting the following description (derived from DSM-IV)’:

‘(A)      the person has been exposed to a traumatic event in which:

(i)            the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii)          the person’s response involved intense fear, helplessness, or horror; and

(B)              the traumatic event is persistently re-experienced in one or more of the following ways:

(i)           recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii)         recurrent distressing dreams of the event;

(iii)       acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv)       intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;

(v)         physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(C)             persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i)           efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii)         efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii)       inability to recall an important aspect of the trauma;

(iv)       markedly diminished interest or participation in significant activities;

(v)         feeling of detachment or estrangement from others;

(vi)       restricted range of affect (eg, unable to have loving feelings);

(vii)     sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(D)             persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i)           difficulty falling or staying asleep;

(ii)         irritability or outbursts of anger;

(iii)       difficulty concentrating;

(iv)       hypervigilance;

(v)         exaggerated startle response; and

(E)              duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(F)              the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,’

9                     Paragraph 4 of that SoP (‘Factors that must be related to service’) requires that at least one of the factors set out in cl 5 must be related to any relevant service rendered by the person.  Clause 5 relevantly provides:

‘5.       The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder 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 …’

‘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 another person’s, physical integrity.

In the setting of service in the Defence Forces, or other services where the Veterans’ Entitlement Act applies, events that qualify as 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;’

10                  ‘Alcohol Dependence’ is dealt with by a SoP (Instrument No 76 of 1998).  Paragraph 2(b) provides that , for the purposes of the SoP:

‘‘alcohol dependence’ means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:

            A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1)          tolerance, as defined by either of the following:

(a)                     a need for markedly increased amounts of alcohol to achieve intoxication or desired effect

(b)                     markedly diminished effect with continued use of the same amount of alcohol

(2)          withdrawal, as manifested by either of the following:

(a)                     the characteristic withdrawal syndrome for alcohol

(b)                     the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

(3)          alcohol is often taken in larger amounts or over a longer period than was intended

(4)          there is a persistent desire or unsuccessful efforts to cut down or control alcohol use

(5)          a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects

(6)          important social, occupational or recreational activities are given up or reduced because of alcohol use

(7)          alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;’

11                  Clause 5 of this SoP provides:

‘5.       The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse 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 two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

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

(d)               experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or

(e)                inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.’

12                  This SoP defines ‘experiencing a severe stressor’ in the same term as the SoP relating to PTSD, except that the ‘event or events’ referred to are also described as those which ‘might evoke intense fear, helplessness or horror’. 

13                  The source for the diagnostic criteria for each of the SoP is stated to be DSM-IV, which is defined to mean the fourth edition of the ‘American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders’. A reference to DSM-IV disclose that the criteria listed in each of the SoP in question reflect those identified in DSM-IV as necessary to a diagnosis, albeit in a summary form.   In the introduction to DSM-IV (at xxxii) reference is made to the ‘Use of Clinical Judgment’:

‘DSM-IV is a classification of mental disorders that was developed for use in clinical, educational and research settings. The diagnostic categories, criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis.  It is important that DSM-IV not be applied mechanically by untrained individuals.  The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe.  On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.’

14                  The practical operation of ss 120, 120A, 196B and a SoP made pursuant to it, has been the subject of detailed discussion in Repatriation Commission v Deledio (1998) 83 FCR 82 and following cases.  Four steps were identified as necessary to be undertaken by the Tribunal, where a SoP had been determined, in connexion with causation.  In summary, the Tribunal is first required to consider whether the material before it discloses a hypothesis connecting the disease with the service of the veteran.  If a hypothesis is raised, the Tribunal must determine whether there is a SoP in force.  If there is, it must consider whether the hypothesis is reasonable, according to the SoP.  If this point is reached the Tribunal may return to the question posed by s 120(1) - whether it is satisfied, beyond reasonable doubt, that the incapacity did not arise from a war-caused injury.  It is only at that point in the process that the Tribunal engages in finding facts as to the question of causation.

15                  It remains to mention s 120(4) of the VEA, which provides for a standard of proof where a determination or decision is to be made which does not arise under s 120(1) or (2).  It provides that the matter is to be decided to the reasonable satisfaction of the decision-maker.

THE DETERMINATION APPEALED FROM

16                  The question posed by the Tribunal, in connexion with the respondent’s PTSD, assumed that he suffered from the disorder.  The Tribunal explained, at the outset of its reasons, that there had been an issue as to whether the respondent was properly diagnosed with the condition, but that in the course of submissions the legal representative for the Commissioner conceded that diagnosis.  The Tribunal remarked that ‘that concession was rightly made’.

17                  The Tribunal expressed itself as satisfied that the material pointed to a hypothesis which connected the respondent’s PTSD with the circumstances of his service.  Four events were identified by the Tribunal as relevant.  The Tribunal found that two of them were consistent with Factor 5(a) of the SoP. They had been identified by Dr Rogers.   It is not necessary to further describe them or the Tribunal’s findings.  Each involved the respondent being confronted by an event which involved a potential threat of death or serious injury by a loaded weapon being pointed at or near to him.  The third step referred to in Deledio 83 FCR 82 was therefore satisfied, in the Tribunal’s opinion.  The Tribunal then proceeded to the fourth step in Deledio 83 FCR 82, to determine whether it was satisfied beyond a reasonable doubt that the PTSD did not arise from a war-caused injury. The question which arose here was whether the respondent’s account was credible, given that it emerged over time.  The Tribunal considered the evidence and found the respondent to be a reliable witness and historian.  There was support for the authority of his account, in the Tribunal’s view.  The PTSD from which he suffered was war-caused, within the meaning of s 9 of the VEA, it concluded.

18                  The Tribunal then turned to the medical evidence from each of Drs Gillman, Mulholland and Rogers with respect to the respondent’s alcohol consumption.  In his report of 19 May 1997, Dr Gillman had said that he obtained from the respondent a history of ‘somewhat excessive alcohol consumption’ and regarded him as suffering from alcohol dependence. Dr Rogers’ report of 21 November 2002 also contained a diagnosis of alcohol dependence, with physiological dependence.  Beside that diagnosis was a reference to ‘DSM IV 303.90’.  The Tribunal noted that the doctor’s reasoning for ‘that conclusion’ not to be readily apparent.  I take this to refer to the physiological dependence.  The respondent saw Dr Mulholland in September 2005.  The respondent apparently detailed a history of excessive intake of alcohol over a ten year period, from 1971 to 1981.  He reported to the doctor that he was now consuming modest quantities of alcohol.  In these circumstances he was consuming more modest quantities of alcohol.  Dr Mulholland concluded that ‘a current diagnosis of alcohol dependence is not appropriate’.  Despite this conclusion the Tribunal preferred the diagnoses of Dr Gillman and Dr Rogers.  In the Tribunal’s view, whilst the respondent’s alcohol dependence might be currently under control, or in remission, the fact that he drinks every day of the week, coupled with the history of earlier, very excessive, drinking, led to a conclusion that his condition was still properly diagnosed as alcohol dependence.  The Deputy President went on:

‘37       The Commission, as I understand its submissions, accepted that if I concluded that Mr Warren had alcohol dependence that it would be open to me to find that factor 5(a) of the Statement of Principles in relation to alcohol dependence or abuse was satisfied. Given the findings that I have made in relation to post traumatic stress disorder that concession is proper. In those circumstances it is not necessary to undertake any further analysis in relation to this claimed condition beyond noting that it also must be regarded as being war-caused.’

THE APPEAL

19                  The Notice of Appeal seeks an order directed to that part of the Tribunal’s decision concerning the respondent’s alcohol dependence as war-caused.  It seeks an order substituting a negative finding.  No order is directly sought with respect to the decision concerning the respondent’s PTSD, although the two conditions are inextricably linked, because the finding with respect to the respondent’s condition of alcohol dependence is based upon his suffering from PTSD at an earlier time, as the passage set out at [18] above shows.  The Notice of Appeal seeks an order that the matter, which I take to be the whole proceeding, be remitted to the Tribunal for fresh determination.

20                  The Notice of Appeal relied upon some fourteen alleged errors of law.  It was sought to further identify the legal nature of the errors in written submissions and leave was sought to amend the Notice of Appeal, presumably to the same end.  The respondent objected to the amendments.  Apart from the withdrawal of one allegation, the amendments are superficial.  They do not in any event properly reflect the nature of the applicant’s case. 

21                  The applicant’s case on appeal may be stated shortly.  Its focus is upon the diagnostic criteria in each of the two SoP.  It is contended that in each case the Tribunal was required to be satisfied that the criteria were met, by reference to the SoP.  In the case of the PTSD it is alleged that the Tribunal failed to consider the SoP criteria at all.  With respect to the condition of alcohol dependence, there was either no evidence to support such a conclusion or the findings made were not consistent with the requirements of the SoP criteria.  If the respondent did suffer from alcohol dependence, it is submitted that there was no evidence that the respondent suffered from a psychiatric disorder at the time of clinical onset of alcohol dependence, as par 5(a) of the SoP requires.  This contention is therefore connected to the Tribunal’s findings concerning the respondent’s PTSD.

DETERMINATION OF THE APPEAL

22                  The question raised by the VEA, to which the appeal is directed, is not that of causation.  The applicant’s reference in submissions to the application of the SoP, in the context of ss 120 and 120A, is likely to confuse the true issue.  The appeal concerns the threshold question, arising from ss 13 and 9, namely whether the respondent in fact suffers from the injury or disease upon which his claim to a pension is based.  The cases confirm that s 120(1) assumes the existence of the relevant injury or disease;  that the question whether it is suffered by the veteran is separate from the following questions as to causation;  and that it is to be determined by the decision-maker to its reasonable satisfaction, as s 120(4) requires:  see Fogarty v Repatriation Commission [2003] FCAFC 136 per Kenny J at [35] and following;  Benjamin v Repatriation Commission (2001) 70 ALD 622;  Repatriation Commission v Cooke (1998) 90 FCR 307 at 310-311; Repatriation Commission v Budworth (2001) 116 FCR 200;  Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 700-702.  Some of these cases have been concerned with the decision-maker applying the wrong standard, or making its factual determination as to the character or existence of the disease when applying the hypothesis seen to arise to the ‘template’ of the SoP.  Repatriation Commission v Hill (2002) FCAFC 192;  69 ALD 581 furnishes an example of the latter error.  The Court observed (at [61]) that reference to the elements of PTSD would have been relevant if there was a dispute as to whether the veteran was suffering from the disorder, but they were not relevant at stage 3 of the Deledio 83 FCR 82 questions.

23                  The question that the appeal raises is whether it is necessary that the Tribunal make its findings, as to the existence of the disease claimed,  expressly and in detail, by reference to the criteria in the SoP.  The applicant relies upon cases which hold that it is necessary for the decision-maker to have regard to the definition of injury or disease in the applicable SoP:  see Repatriation Commission v Codd [2005] FCA 888 at [48] and Gosewinckel 59 ALD at [55].  Those cases however also make plain that it may be expected that the Tribunal will act upon medical opinion as to diagnosis. The point made by Weinberg J in Gosewinckel 59 ALD at [55], is that the Tribunal is not in a position to accept a doctor’s opinion as to the existence of a disorder without knowledge of the criteria essential to its diagnosis. 

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

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

26                  The applicant’s case must therefore be that it is to be inferred, as a matter of statutory construction, that the SoP diagnostic criteria are to be applied to a finding with respect to the anterior statutory question.  Their application may be implied if the statute was intended to operate in a particular way. In that regard there is a clear connexion between the condition to be found and the criteria, or at least a practical consequence if they do not correspond. Although the anterior question is separate from that as to whether the SoP applies, if the condition found is characterised by criteria which differ from those in the SoP, the claim will fail because the SoP will not apply.  The possibility of a reasonable hypothesis arising will be removed. 

27                  It may be inferred that the SoP were written upon an assumption that if a veteran was found to be suffering from a condition classified by DSM-IV, a diagnosis in accordance with that Manual would have been made.  It was intended that the SoP apply where such a diagnosis was made.  This assumption, of correspondence, might suggest the application of the SoP criteria in relation to the finding of the existence of the condition.  There is however one difficulty with that approach.  It is DSM-IV  as a whole which will inform a clinical diagnosis, upon which a finding will be based.  The Manual itself explains that there is more to a diagnosis than the application of the criteria in a ‘cookbook’ fashion.  A person having symptoms which fall short of meeting the stated criteria may nevertheless be diagnosed as suffering from the condition.  DSM-IV refers to the need to exercise clinical judgment, which I take to include the application of experience.  In some cases the SoP criteria may not therefore be met.

28                  It cannot be inferred that the SoP were drawn on the basis of some misunderstanding as to the application of DSM-IV.  They were drawn by reference to it.  It could not therefore have been intended that the strict application of the criteria summarised in the SoP definition was to be a requirement of, or a substitute for, a proper clinical diagnosis.  The threshold question in each case will be whether the diagnosis was one properly made, having regard to DSM-IV.  Because clinical judgment is involved, differences of opinion may arise.  They will need to be resolved by the Tribunal on the materials before it.

29                  Once the Tribunal has made its finding the VEA does not require the diagnosis to be assessed against the SoP definition, as if the latter were a check list.  The purpose of the definition must be borne in mind.  It is to identify which condition or disorder in DSM-IV it refers to.  If the Tribunal or other decision-maker has accepted a diagnosis of a DSM-IV classified disorder, the SoP will apply to it.  It may have been sufficient to refer to the description of the disorder, but the SoP have gone further and summarised the relevant criteria.  This may have been intended as a useful guide for decision-makers.  That is not important for present purposes.  There is nothing in the operation of the relevant provisions of the VEA which requires the SoP definition to be utilised by the decision-maker in determining the existence and nature of the DSM-IV classified condition.  The possibility of a lack of correspondence should not arise.

30                  The only question in the present case was whether there was evidence upon which the Tribunal could reasonably be satisfied that the respondent suffered from PTSD and alcohol dependence.  The evidence of Dr Rogers was not only that of a diagnosis of each condition, but also that each diagnosis was made in accordance with DSM-IV.  Those assertions were not challenged by the applicant.  No aspect of his diagnoses was identified as outside the purview of DSM-IV. 

31                  In relation to the PTSD the Tribunal also had before it the report of Dr Mulholland, in which he expressed the opinion that the respondent’s symptoms did not warrant a conclusion that he suffered from a psychiatric disorder.  The doctor conceded that the length of time over which the respondent had been receiving psychiatric treatment and the observation of an independent lay witness, as to changes in the respondent’s personality, might suggest a psychiatric disorder.  The respondent had been seeing Dr Rogers for some four years by the time of the hearing.  Moreover Dr Mulholland expressed concern that the respondent may have been understating his problems.

32                  The Tribunal was clearly prepared to act upon Dr Rogers’ evidence and said as much.  It would have been entitled to do so, regardless of the concession made by the applicant’s legal representative that the diagnosis was one properly made and capable of acceptance by the Tribunal.  It is therefore strictly unnecessary to deal with the applicant’s submissions with respect to the concessions, but it seems to me necessary to do so, since it now involves the conduct of the applicant on an appeal before this Court.

33                  The applicant embarked upon a surprising course on the appeal.  It argued that the concession was not properly made, or that it should not be held to it.  Reference was made in submissions to the concession being something of a ‘surrender’. It is correct that the concession occurred after discussion between the Tribunal and the applicant’s legal representative.  Clearly enough he considered that the Tribunal was not impressed with the applicant’s foreshadowed contention that Dr Rogers’ diagnosis should not be accepted, although the applicant had not directly challenged it.  He advised the Tribunal that he would no longer press the contention and would focus the applicant’s argument upon the application of the Deledio 83 FCR 82 steps, which is to say upon the assumption that the Tribunal accepted the diagnosis of PTSD.  The Tribunal enquired whether the applicant’s legal representative wished to take that position.  It appears that it was concerned that he may have felt some pressure to do so, arising from the discussion.  It seems to me that the Tribunal may have been overly polite.  There is no indication in the transcript that the legal representative was at all pressured.  This is confirmed by what followed.  The question asked by the Tribunal, whether the legal representative accepted the diagnosis of PTSD, was answered directly and in the affirmative.  The legal representative advised that he  did not feel under any pressure, but recognised that a finding contrary to the applicant was inevitable.  In any event he concluded by saying that he was ‘happy to put the Commission’s case on whether or not the condition of PTSD is related to service through the Statement of Principles having regard to Deledio and the other cases, and I also put our case on the basis that there is no diagnosis present of an alcohol disorder’.  At the Tribunal’s request he confirmed that the issues arising were causation, with respect to the PTSD, and that there was no diagnosis of alcohol abuse. 

34                  As a general rule it is only in the clearest case, and for the most cogent of reasons, that a party who has conceded a matter is able to make the validity of what was conceded the basis for overturning a decision:  Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 at 241.  If there was some error on the part of the Tribunal in acting upon the concession, or something approaching injustice to the applicant in holding it to the concession, the Court might exercise its discretion to permit it to argue to the contrary of it and require a fresh hearing upon the matter:  Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194-195;  Nation v Repatriation Commission [No 2] (1993) 18 AAR 273 at 293.  The concession on the part of the applicant’s legal representative was perfectly clear.  The fact that he considered that the Tribunal was likely to accept Dr Rogers’ diagnosis is no basis for permitting the applicant to resile from the concession.  It amounted to an exercise of professional judgment, as to whether to pursue the issue at all.  It could hardly be said to amount to an injustice to hold it bound to it.  The only injustice it would work would be to the respondent.

35                  The applicant submitted that the Tribunal was not entitled to act upon the concession, as it had a statutory duty to decide the question, whether the respondent suffered from the condition, for itself and referred to Perpetual Trustee Company (Canberra) Limited v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 at 419.  In that case however the Tribunal had decided a case on the basis of admitted facts which provided only an artificial and inadequate basis.  The Court did not hold that a Tribunal could not accept proper and relevant admissions of fact.  In the present case there was nothing to prevent the Tribunal accepting the admission, which was clear in its terms and was made in the background of evidence of a diagnosis of PTSD.  It was in any event intending to act upon that evidence.

36                  I turn then to the applicant’s argument concerning the Tribunal’s finding that the respondent suffered from alcohol dependency.  The applicant’s general submission, that the doctors and the Tribunal were required to refer in detail to the criteria in the SoP, (or DSM-IV), in arriving at their diagnosis or finding respectively, is dealt with by the preceding reasons.  On the applicant’s alternative approach, and in an endeavour to raise a question of law, it was contended that there was no evidence to permit such a finding.  A mere insufficiency of evidence would not suffice.  It is necessary in cases such as this to be precise as to the nature and quality of the error attributed to a decision-maker:  Re Minister for Immigration and Multicultural Affairs;  Ex parte S20/2002 (2003) 198 ALR 59;  [2003] HCA 30 at [5];  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 at [40].  From that point it may be possible to identify the legal principle, or statutory provision, that attracts the suggested consequence:  S20/2002 198 ALR at [5]. 

37                  There was evidence which supported the finding made by the Tribunal, that of Drs Gillman and Rogers.  They had both diagnosed alcohol dependence, Dr Gillman as at 1997 and Dr Rogers in 2002 and 2004.  Dr Mulholland did not consider that a diagnosis was open, on the account of the respondent that his heavy consumption of alcohol had been over a ten year period which ended in 1981 and that, by the time Dr Mulholland saw him in September 2005, the respondent had control of the problem, having reduced his consumption to only 150 ml of port wine each day and somewhat more on one or more occasions a week.

38                  The applicant sought, in the first place, to overcome the two doctors’ diagnosis by elevating a statement made by the respondent to Dr Gillman, that he did not consider that he had such a problem, to a denial of his case.  It is not difficult to understand why the Tribunal did not expressly deal with the contention.  It was clearly entitled to disregard it.  Dr Gillman had done so, whilst expressing the view that the respondent had little insight into his condition.

39                  I infer from the applicant’s submissions from this point, that it is contended that the only evidence that the Tribunal could consider was that of the respondent himself, in his account to Dr Mulholland, and the doctor’s opinion thereon.  This approach assumes that the account and opinion must be accepted and that the other doctors’ diagnosis are no longer reliable, because there was a significant change in the respondent’s habits.  The applicant submitted that the Tribunal was not entitled to assume a continuation of heavy drinking and the condition of alcohol dependence by reference to the respondent’s level of consumption as reported to Dr Mulholland.  The Tribunal was not entitled to rely upon the fact that the respondent drank every day, even if in the lower quantities reported to Dr Mulholland, as substantiating a diagnosis.  The criteria referred to a constellation of symptoms and the Tribunal’s reasons went no way towards identifying them, it was submitted.  The submission misunderstands the Tribunal’s reasons.  It was not making a diagnosis itself.  At issue was whether the diagnoses of alcohol dependence, particularly that of Dr Rogers made a year before and by reference to DSM-IV, could be said to be no longer relevant because they were based upon a different level of alcohol consumption.  It was concerned with the question, which had been directed to Dr Mulholland, whether it could be said that the respondent was in remission, given that doctor’s evidence that the underlying tendency to heavy drinking was likely to remain.

40                  It is scarcely necessary to point to the authorities which remind that the decisions of tribunals are not to be read too closely or literally.  A number of cases have recognised that a tribunal may be taken to have considered the whole of the evidence, although its conclusions are stated shortly:  see for example Ex parte s20/2002 198 ALR at [14] and Gosewinckel 59 ALD at [59].  In the present case the Tribunal may have identified one factor which influenced it towards a conclusion that the respondent’s condition remained that which Drs Gillman and Rogers had diagnosed.  It would have been obvious to the Tribunal that the period of the respondent’s heavy drinking reported to Dr Mulholland was inconsistent with the histories reported to those two doctors and upon which their diagnosis had been made.  In his 2004 report Dr Rogers confirmed his earlier diagnosis, despite the respondent having reduced his consumption.  The Tribunal’s reasons contain a reference to the possibility that the respondent’s condition might have been in remission at the time when he saw Dr Mulholland, a matter which had been raised with the doctor in the course of the hearing.  The doctor said that was a difficult question.  Importantly, the doctor had not made a diagnosis of an existing condition because the respondent gave him a history of his control of drinking over a long period of time, since the early 1980s.  He said that if there was a more recent history of heavy drinking, a diagnosis of a condition in remission was possible.  The doctor was there answering a question relating to alcohol abuse, but he referred generally, in his answer, to conditions relating to alcohol where the sufferer may readily relapse.  His views would appear to be of general application.

41                  The Tribunal’s reasons disclose that it was not persuaded from the diagnosis of alcohol dependence made by the two doctors.  Such a conclusion would have required it to accept the respondent’s current drinking was as reported to Dr Mulholland when there were obvious inconsistencies in the history he gave about his drinking.  It accepted only as a possibility that the respondent could be in remission.  Even if it had accepted that to be the case, the earlier diagnoses would remain unaffected.  The respondent would still suffer from the condition.  It may reasonably be inferred that it did not accept that any change in the respondent’s behaviour was such as to have been likely to remove the basis for the diagnoses.

42                  The applicant’s last point concerns the Tribunal’s finding that factor 5(a) of the SoP, relating to alcohol dependence, had been satisfied because of its findings with regard to the respondent’s PTSD.  The respondent submits that the Tribunal’s reasons (at [18] above) may have two meanings:  that he was suffering from PTSD at the time of clinical onset of his alcohol dependence or that he experienced the same severe stressor as that attributed to the PTSD.  The latter finding may well have been open, but the Tribunal’s reasons make plain that it was factor 5(a) to which its finding was addressed.  There was evidence which supported the finding, including that of Dr Rogers who regarded the conditions as related and the heavy consumption of alcohol to have followed upon the latter of the incidents in Vietnam.  The applicant had itself expressly conceded in its Statement of Issues that if the Tribunal finds that PTSD and alcohol dependence are both present, it would be to the Tribunal to find that fact 5(a) of SoP No 3 of 1999 am No 76 of 1998 is satisfied’.

CONCLUSION

43                  The appeal should be dismissed with costs.

Associate:

Dated:         8 June 2007