FEDERAL COURT OF AUSTRALIA

Border v Repatriation Commission (No 2) [2010] FCA 1430

FEDERAL COURT OF AUSTRALIA

Border v Repatriation Commission (No 2) [2010] FCA 1430

CORRIGENDUM

1.    In paragraph 59 of the Reasons for Judgment, insert “Paragraph” at the beginning of the second sentence.

2.    In paragraph 67 of the Reasons for Judgment, in the first line, insert “It is” at the beginning of the second sentence and change “The” to “the”.

3.    In paragraph 68 of the Reasons for Judgment, insert a full stop at the end of the paragraph.

4.    In paragraph 75 of the Reasons for Judgment, in the sixth sentence, insert “a” before “life-threatening event”.

5.    In paragraph 75 of the Reasons for Judgment, insert a full stop at the end of the seventh sentence.

Associate:

Dated:    23 May 2011

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The Administrative Appeals Tribunal’s decision be set aside.

3.    Mr Border’s application be remitted to the Administrative Appeals Tribunal to be reconsidered and determined according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This appeal involves the application of ss 120 and 120A of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) and the four step process identified by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”). The specific question raised is whether the Administrative Appeals Tribunal (“the Tribunal”) correctly undertook the third step in the Deledio process.

mr Border serves in the Australian Army in Vietnam

2    Mr Border served in the Australian Army from 20 March 1967 until 20 March 1987. He was 17 years old when he first enlisted. During his time in the Army, he performed operational service in Vietnam between 13 April 1971 and 28 October 1971. Some time after he retired from his army service, Mr Border developed post traumatic stress disorder (“PTSD”). It is common ground that Mr Border does suffer from PTSD. The critical issue in this case was whether Mr Border’s PTSD was causally connected with his operational service in the Australian Army within the terms of the Act.

3    Before the Tribunal, Mr Border claimed that there were four events that occurred during his operational service in Vietnam that either individually, or collectively, contributed to him developing PTSD. Those events may be summarised as follows:

    “the scorpion event” – This event involved a scorpion biting Mr Border’s finger while he was unloading stores at a Q store. He suffered swelling in his arm and face. He was conveyed to a military hospital at Nui Dat for treatment. He was released from hospital on the same day and he was allowed to return to his unit on instructions he should only undertake sedentary duties.

    “the torch event” – On the night of the “scorpion event” and while not having fully recovered from it, Mr Border was required to perform the duties of a duty sergeant. During this night duty, radio contact was lost with a small party of soldiers at the perimeter wire of the compound. When this occurred, Mr Border became confused and turned on his torch. One of his fellow soldiers shouted at him to turn off the torch or they would “shoot” him.

    “the rockets event” – While working at an ammunition depot, a RAAF sergeant told him to load live rocket ammunition. As he was doing this, he put his hand over two bare wires and the sergeant shouted at him because this could detonate the rockets.

    “the moved base event” – While Mr Border was absent from his base overnight, his unit moved from Nui Dat to Vung Tau and he was forced to obtain a ride with a US aircraft.

the procedural background to the appeal

4    On 25 May 2006, Mr Border made a claim under the Act for the costs of medical treatment and a pension for incapacity on the footing that his PTSD was war-caused within the terms of s 9 of the Act. On 21 March 2007, the Repatriation Commission (“the Commission”) rejected Mr Border’s claim on the ground that his PTSD was not war-caused. That decision was affirmed on review by both the Veterans’ Review Board and, more recently, by the Tribunal. Mr Border subsequently filed a notice of appeal in this Court against the decision of the Tribunal.

5    In its original form, the question of law raised by Mr Border’s notice of appeal was whether the Tribunal erred in its interpretation and application of s 120(1) of the Act. In response to this, the Commission filed a notice of motion seeking to strike out Mr Border’s appeal under s 31A of the Federal Court of Australia Act 1976 (Cth), on the basis that the notice of appeal did not identify a question of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

6    To attempt to forestall the Commission’s notice of motion, Mr Border sought leave to make various amendments to his original notice of appeal. The final amended notice of appeal identified the questions of law as follows:

(a)    Whether the Tribunal’s findings that the appellant’s accepted condition of PTSD was not war-caused was open on the basis of the accepted evidence and s 120 of the Act;

(b)    Whether there was any evidence from which the Tribunal was able to draw the inference that the PTSD was other than war-caused.

7    On 23 March 2010 I ordered that the Commission’s notice of motion to strike out Mr Border’s appeal be dismissed and he be given leave to amend his notice of appeal: see [2010] FCA 264. I subsequently heard his appeal as so amended.

The contentions of the parties

8    In essence, Mr Border’s case on this appeal was that the Tribunal erred at step three of the Deledio process by making factual findings that none of the four events, either individually or collectively, amounted to a life-threatening event. He claimed that this fact finding exercise should occur at step four, not step three, of the Deledio process.

9    For its part, the Commission agreed that, until step four of the Deledio process, the Tribunal was not permitted to engage in any fact finding exercise. However, the Commission claimed that, at step three of the Deledio process, the Tribunal had to assess whether the hypothesis advanced by Mr Border fitted within the relevant Statement of Principles (SOP). It was required to assess that objectively from the perspective of a reasonable person in the position of, and with the knowledge of, Mr Border. It claimed the Tribunal had correctly made that assessment and concluded that Mr Border did not experience a life-threatening event.

Sections 120 and 120A of the Act

10    Where a claim under the Act relates to operational service rendered by a veteran, ss 120(1) and 120(3) set out the approach that has to be taken and the onus of proof that has to be applied by the Commission in determining whether an injury or disease is war-caused.

11    Section 120(1) provides:

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

12    Section 120(3) 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.

13    Section 120A(3) provides:

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

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

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

that upholds the hypothesis.

The four step Deledio process

14    As I mentioned at the outset of these reasons, in Deledio, the Full Court set out a four step process that should be followed by the Commission and the Tribunal in applying these sections. That process is as follows (at 97–98 of Deledio):

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 [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.    If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.    The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

The Tribunal’s decision

15    The critical paragraphs of the Tribunal’s decision in this matter were [33]–[41]. At [33], the Tribunal purported to apply the first three steps in the four step Deledio process as follows:

33.    There is a hypothesis raised between the facts presented by the applicant and his military service. Step 1 is therefore satisfied. Step 2 is satisfied in that an SoP has been declared which covers the situation raised by the applicant. In relation to Step 3, the evidence must point to the criteria in the SoP for it to be a reasonable hypothesis. I have already accepted that Mr Border has PTSD and a cluster of symptoms of long-standing which, according to Dr Calder-Potts, Dr Majumdar and Professor Jones, indicate generalised anxiety disorder and obsessive compulsive personality traits. The question for the Tribunal is whether the four incidents raised by the applicant explain and fall within the template raised in factor 6a of SoP No. 5 of 2008, i.e. “experiencing a life threatening event”.

The last sentence above requires some explanation. It is not in dispute in this appeal that the relevant Statement of Principles (SOP) was SOP No. 5 of 2008. As Clause 3(a) of the SOP states, it is about post traumatic stress disorder. Clause 3(b) of the SOP defines what PTSD is – it is not necessary to set out that definition for present purposes. Clauses 4 and 5 of the SOP then state:

(4)    The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that posttraumatic stress disorder and death from posttraumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under [the Act] ….

(5)    Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

(emphasis in original)

16    Clause 7 is not relevant for present purposes. Clause (5) requires that at least one of the factors in Clause 6 has to be “related to the relevant service rendered”.

17    Nine factors are set out in Clause 6. The first – set out in Clause 6(a) – is: “experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;”. The expression “a category 1A stressor” is defined in Clause 9 of the SOP to mean:

one or more of the following severe traumatic events:

(a)    experiencing a life-threatening event;

(b)    being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)    being threatened with a weapon, being held captive, being kidnapped, or being tortured;

18    All this goes to explain the origins and significance of the expression, “experiencing a life-threatening event”, which is referred to in the last sentence of [33] of the Tribunal’s reasons for decision (above) and on numerous occasions elsewhere in them.

19    At [34] of its reasons, the Tribunal decided that it should follow the approach taken by Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283; [2003] FCA 334 (“Stoddart”). In Stoddart, Mansfield J considered what was meant by the phrase “experiencing a severe stressor”, which was defined by the relevant SOP in that matter as meaning (among other things) that: “the person experienced, witnessed, or was confronted with, an event or events that involved actual or threat of death or serious injury …”. In this matter, the equivalent expression is “experiencing a category 1A stressor” which, as I have set out above, is defined to mean (among other things) experiencing a life-threatening event. As to the meaning of that expression, the Tribunal referred to the Encarta Dictionary definition as: “very serious, very dangerous or serious with a possibility of death as an outcome”. It also referred to a Tribunal decision in Mann and Repatriation Commission [2008] AATA 163, where Senior Member Carstairs observed that the expression should be interpreted: “as having a subjective and objective component”. The Tribunal added: “The term ‘life threatening event’ must therefore refer to an event which either endangers or can be perceived to endanger the continued life of the person concerned and not merely be something which is an inconvenience or nuisance and unlikely to threaten a person’s life”.

20    The Tribunal observed (at [35]) that in Stoddart Mansfield J: “held that there was no requirement that there be an actual threat”. It then set out the following quotation from Stoddart (from [55] of that decision) saying that: “The test determined there was said to”:

cater ... for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if ... the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.

21    At this point, it is convenient to note that in this quote, the Tribunal has inexplicably omitted the words “the event or events which are said to constitute” which appear after the word “if” and before the words “the threat” in the original quotation. I will consider the effect of this omission later in these reasons.

22    At [36], the Tribunal noted that the SOP (above): “does not provide examples or a meaning of ‘life threatening event’”. However, it observed that the definition of “a category 1A stressor” included events such as: “… a serious physical attack or assault including rape or sexual molestation; or being threatened with a weapon, being held captive, being kidnapped, or being tortured”. The Tribunal then stated: “In making an assessment at step 3 of the Deledio process, ‘the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD’”. The footnote to the part of this quote which is in quotation marks (I have underlined it) referred to a Federal Court decision of Mines v Repatriation Commission (2004) 86 ALD 62 (“Mines”). However, that footnote did not identify where in Mines that quotation appeared. From an examination of that decision, it is apparent it comes from [48], as follows:

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

(emphasis added)

23    When the whole of this paragraph is read in context, it becomes apparent that Gray J was not discussing step three in the Deledio process at all. Instead, he was addressing a question that arises before the Deledio process comes into operation, ie whether the Tribunal is satisfied that the veteran suffers from an injury or disease. This is confirmed later in his Honour’s reasons where he says (at [53]–[54]) that:

[53]    Nowhere in its reasons for decision does the Tribunal appear to have expressed a finding that the applicant suffered from any disease or condition. There is no statement as to whether the Tribunal had or had not reached a stage of reasonable satisfaction that the applicant was so suffering. …

[54]    … As I have said, the first task of the Tribunal, before it embarked on the steps referred to in Deledio, was to decide whether it was reasonably satisfied that the applicant was suffering from a disease, even if, as the Full Court in Budworth said at [19], the Tribunal only identified the collection of relevant symptoms which it was satisfied constituted the disease which the appellant had contracted. … At that stage, the question of a hypothesis, or its reasonableness, did not arise.

24    As I have already noted above, it is common ground in this case that Mr Border does suffer from PTSD. It necessarily follows that the situation that was being addressed in Mines does not arise in this case and the Tribunal’s reliance upon that decision at [36] of its reasons was misconceived. I will consider the effect, if any, this error has on the Tribunal’s decision later in these reasons.

25    Immediately after the quotation from Mines referred to above, the Tribunal made the following observations (at [36]):

There are no issues of credit in relation to the applicant’s version of events and therefore I am satisfied that the events occurred. The real question is whether they are of such a magnitude that they could be regarded as falling within the general theme of the terms defined as meaning “a category 1A stressor”. This assessment is not based on any factual findings about evidence but merely an assessment of the hypothesis raised and whether it comes within the bounds of the meaning of a category 1A stressor.

26    The Tribunal then turned to consider (at [37]–[40]) the four events identified by Mr Border (summarised at [4] above). While the Tribunal assessed these four events as being variously “frightening”, “very serious” and “unpleasant”, it concluded that none of them was sufficiently serious to constitute a “life threatening event”.

27    In relation to the “scorpion event”, the Tribunal noted (at [37]) that:

It is apparent that the symptoms developed quickly but the applicant was taken to hospital where he was given treatment. He was monitored and released the same day. While Mr Border suffered a degree of panic as the situation develop, he clearly was fearful for his future health and it took some weeks for all these symptoms to dissipate. Nevertheless, he was returned to duty immediately, albeit on light duties.

28    In assessing this event, the Tribunal said: “the size of the threat is not to be gauged by the size of the weapon (for example a scorpion versus, say, a rifle) but by the likely psychological impact of the event”.

29    The Tribunal went on to conclude that:

there [was] the possibility that he could have suffered a threat to his life had treatment not been available for a period of time. But viewed objectively in the circumstances described, even though Mr Border would have experienced extreme discomfort particularly in view of his personality, the risk of death or endangering the continued life of Mr Border does not seem to me to be an objective assessment of a reasonable person with full knowledge of the situation.

30    On the “torch event”, the Tribunal observed (at [38]) that the threat that someone would shoot him must be “viewed in context”. It described that context in this way: “As the duty sergeant in a group of men who were well trained and relied upon each other as serving soldiers, this comment was made as an isolated statement in the context of security role trained and subordinate soldiers calling out at night”. The Tribunal found that although Mr Border must have felt “he was being ridiculed … [i]t may well be that the soldiers had no knowledge of who used the torch as it was at night. They were not under fire”. Accordingly, the Tribunal concluded the event: “cannot objectively be regarded as a life threatening event” and did not come “within the definition as a threat to life from an objective point of view”.

31    As to the “rockets event”, the Tribunal found (at [39]) that it was “undoubtedly humiliating” and that it was an “unpleasant experience”, but that it did not “reveal a life threatening event”. The Tribunal also noted that Mr Border had given evidence that the sergeant (who was shouting at Mr Border for mishandling the rockets) “was not particularly serious about his warning although he [Mr Border] did not know that at the time”.

32    Finally, in relation to the “moved base event”, the Tribunal considered (at [40]) that, while Mr Border felt “confused and isolated”, the evidence did not indicate that he was “stranded for any length of time, was not in enemy territory, unarmed or otherwise vulnerable” and that the event did not fit within the “degree of seriousness defined as a ‘life threatening event’”.

33    In the final paragraph of its reasons ([41]), the Tribunal stated that Mr Border had to establish a causal connection between his PTSD and his military service. It said:

The applicant’s case is that he has PTSD not from any one of the four events he raised but rather, as a composite of all of those events. What must be shown for him to succeed is a causal connection and not a temporal one. As stated in Roncevich v Repatriation Commission, when examining the meaning of causation and its application in the context of an injury or disease being “defence caused”, the Court said “the prior existence of facts and circumstances does not, as such, make those facts and circumstances causally relevant, in a legal sense, for an event that follows in time”. It seems to me that the factual evidence here (including the medical evidence) is a reflection of the process described in Roncevich. Mr Border suffers from PTSD which has a more complex explanation than being referrable to military service as a sole or dominant or contributory cause.

34    At this point I should record that the statement in the first sentence about the applicant’s case being based on the composite of all the four events appears to be directly at odds with the statement near the outset of the Tribunal’s reasons (at [6]) that Mr Border’s claim was based on the four events: “either individually or as a composite group have resulted in his PTSD”. During the hearing of this appeal, Mr Border’s counsel disavowed the former and made it clear Mr Border’s case was the latter.

35    The Tribunal then summed up on its task as follows:

The factual incidents must be looked at and the Tribunal must take account of “the whole of the evidence”. The incidents described either individually or collectively do not, in my opinion, amount to “experiencing a life threatening event” for the purposes of Step 3 of Deledio. The ultimate issue is whether the injury or disease was “one that ‘arose out of, or was attributable to’ the applicant’s service”. The incidents seem to me to be a “mere possibility” but are “not tenable” based on the scenarios presented and the template set out in the relevant SoP. The applicant’s case therefore cannot sustain a reasonable hypothesis linking those events to Mr Border’s PTSD, which had its onset in 1996, twenty-five years after the stated incidents. Step 3 is therefore not satisfied.

Consideration

36    It is appropriate to begin by identifying more precisely what is required at the third step in the Deledio process. To that end, the critical words used by the Full Court in Deledio bear reiterating. They were:

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 … If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.

37    Prior to setting out the four step process in Deledio, the Full Court cited, with approval (at 96), a passage from the decision of Heerey J at first instance which elaborated upon the nature of the assessment to be undertaken as a part of the third step, as follows:

Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i)    contrary to proved or known scientific facts,

(ii)    obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)    (since 1994) inconsistent with (not upheld by) an applicable SoP.

38    These principles were reiterated by another Full Court in Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 (“Hill”) as follows (at [57]):

Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out “the factors that must as a minimum exist” and “which of those factors must be related to service”. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.

See also Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 (“Woodward”) at [33] and Stoddart at [8]–[9].

39    Before leaving the decision in Hill, it is also important to note that the Full Court there emphasised that the decision of the Tribunal as to whether a hypothesis relied upon by a veteran was supported by material pointing to each of the requisite factors in a relevant SOP could not be the subject of an appeal under s 44(1) of the AAT Act unless: “in making it, the Tribunal acted otherwise than in accordance with the law. If a Tribunal falls into an error of law ‘which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers’”: see Hill at [59].

40    In the recent case of Hunter v Repatriation Commission (2010) 114 ALD 89; [2010] FCA 145, Perram J made some helpful observations (with respect) on how the Tribunal is to assess the veteran’s hypothesis at the third step of Deledio. He said (at [13]): “The task at hand, therefore, is the testing of a hypothesis and not the examination of the correctness or otherwise of the premises upon which the hypothesis may rest. Consequently, the Tribunal is not to determine whether the material before it establishes the premises in question; rather it is to determine whether the material before it ‘points to some fact or facts (the raised facts) which support the hypothesis’”. And further: “A corollary of those principles is that in this third stage, proof of the facts is not required nor, correspondingly, is the Tribunal called upon to make findings of fact”. This last point was made by the Full Court in Deledio (see at [14] and [38] above) and Hill at [59]. The High Court also underscored it in Bushell v Repatriation Commission (1992) 175 CLR 408 (“Bushell”) (per Mason CJ, Deane J and McHugh J) (at 413) where it said (while this was a pre-1994 claim it is still apposite on this point):

Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis.

41    It follows that, first, the Tribunal has to test the veteran’s hypothesis to determine whether the material before it points to facts which support it. Then, since 1994 when the SOP regime was introduced into the Act, the reasonableness of a veteran’s hypothesis has to be determined by whether it fits into, or is consistent with, or is upheld by, the template to be found in the relevant SOP. The hypothesis will do this if it contains, as a minimum, one or more of the factors specified in the relevant SOP template. If it does, that carries with it the necessary causal connection between the injury, disease or death with the veteran’s service.

42    As I have noted above, in its reasons for decision the Tribunal decided it should follow the decision of Mansfield J in Stoddart. In particular, it decided it should follow the test delineated in Stoddart.

43    At this point, it is convenient to record that there are at least two significant points of distinction between Stoddart and the present case which the Tribunal failed to identify. The first is that Stoddart was dealing with step four in the Deledio process, not step three as here. So much is clear from the discussion in [9] and [10] of Stoddart where Mansfield J sets out the first three steps in the Deledio process and then says (at [10]): “There is no issue between the parties to this point”. It is also apparent from [35] of Stoddart where Mansfield J records that the Tribunal was not satisfied beyond reasonable doubt that the veteran witnessed certain events. This is an obvious reference to the standard of proof which is applied at step four.

44    The second is that the expression being considered in Stoddart was “experiencing a severe stressor”, as contained in both the 1998 Alcohol Abuse SOP and the 1999 PTSD SOP. The latter is the predecessor of SOP No 5 of 2008 dealing with PTSD. It is common ground between the parties that the 2008 PTSD SOP is the applicable SOP in this case. The relevant expression in the 2008 PTSD SOP is: “experiencing a category 1A stressor”. The definition of the expression “a category 1A stressor” is set out at [18] above and does not need to be repeated here. Mansfield J sets out the relevant parts of the definitions of “experiencing a severe stressor” in Stoddart (at [31]) as follows:

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

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

(i)    threat of serious injury or death; or

(ii)    engagement with the enemy; or

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

45    There is a number of significant differences in these two sets of definitions. The definition of “experiencing a severe stressor” defines the severity of the stressor by reference to its emotional consequences, ie an event that “might evoke intense fear, helplessness or horror”. That definition also refers to the physical consequences of the threat, ie the death or serious injury. Furthermore, it covers a broader range of circumstances including witnessing or being confronted with an event. On the other hand, the definition of “a category 1A stressor” does not include any express reference to the emotions evoked by the event, or its consequences. Instead, it is purely events based and is limited to a nominated list of events that are taken to be “severe traumatic events”. It is also limited to experiencing or being directly involved in those events – the definition of “a category 1B stressor” deals separately with witnessing or being confronted with various severe traumatic events. Finally, the definition of a category 1A stressor specifically includes being threatened with a weapon. The closest equivalent provision in the definition of “experiencing a severe stressor” is “engagement with the enemy”. It would appear to follow that the former (as distinct from the latter) could extend to being threatened with a weapon by someone other than the enemy, eg a person on the veteran’s own side. I will return to this issue later in these reasons.

46    The difference between these two sets of definitions are similar to those that were discussed by the Full Court in Woodward. In Woodward, the Full Court emphasised that the interpretation of the words of the relevant SOP was of critical importance. It observed that the Tribunal may refer to authoritative medical texts or it may receive expert evidence: at [113]. But, in the absence of such material, it is left to look to the ordinary meaning of the words: at [114]. I would interpolate that in this case the Tribunal did not have such material before it so it was left to look to the ordinary meaning of the words. Woodward, like Stoddart, involved the expression “experiencing a severe stressor”. The Full Court compared the definition of that expression with the definition of the expression “stressful event” that was considered by North J in O’Neil v Repatriation Commission (2001) 34 AAR 290; [2001] FCA 1492 (“O’Neil”). The definition of this latter expression was “an occurrence which evokes feelings of anxiety or stress” at [111] in Woodward. The Full Court observed (at [112]) that:

the subject of the sentence in the definition of “stressful event” was “the occurrence”, whilst the subject of the sentence in respect of the definition of “experiencing a severe stressor” is “the person”. As a matter of ordinary English usage it may be easier to read the definition of “experiencing a severe stressor” as being entirely subjective than it is the definition of “stressful event” considered by North J.

47    It seems to me that the same distinction can be made between the definition of “experiencing a severe stressor”, as in Woodward, and the definition of “a category 1A stressor”, in this case. That is so because the subject of the former is the person experiencing the stressor whereas the subject of the latter is the occurrence of a particular event or events.

48    In O’Neil, the Tribunal found that the “stressful event” – a breakout of prisoners of war at Cowra – was not an occurrence which Mr O’Neil experienced because it occurred nine months before he arrived at Cowra. Accordingly, the Tribunal found that his fear whilst on guard duty at Cowra arose without any related incident and it was therefore satisfied his feelings were all subjective. In doing so, the Tribunal stated it was applying an objective test. North J held that the Tribunal had misdirected itself in law. He considered that the Tribunal’s reference to an objective test was difficult to understand. He said (at [12]) that:

It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs.

49    Since the definitions of “a stressful event” and “a category 1A stressor” both integrally involve an occurrence or event, the approach outlined by North J may appear to be appropriate for the Tribunal when it is considering whether an event or events hypothesised by a veteran fall within the 2008 PTSD SOP.

50    However, whilst the definition of “a stressful event” is more similar to the definition of “a category 1A stressor” than the definition of “experiencing a severe stressor”, there are some significant differences between these two definitions as well. Again, it is important to interpret the words of the SOP at issue. The first and most obvious difference is that the definition of “a category 1A stressor” makes no express mention of the type of feelings experienced by the veteran. To the contrary, it simply states that such a stressor “means one or more of the following severe traumatic events”. Furthermore, whilst subpara (a) of the definition incorporates the experience of the veteran in the event by defining it as “experiencing a life-threatening event”, the other two subparas – (b) and (c) – focus on the inherent nature of the event concerned rather than the feelings or emotions engendered by it. Thus, they variously refer to: “a serious, physical attack”, “assault”, “rape”, “sexual molestation”, “being threatened with a weapon”, and “being held captive, being kidnapped or being tortured”. Whilst all of these events would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any such subjective factor as a relevant consideration in determining whether the event falls within the definition. It would follow that, if the material before the Tribunal points to facts that support the veteran’s hypothesis he or she was threatened with a gun, that event would fall squarely within the terms of subpara (c) of the definition of a category 1A stressor in the SOP and there would be no requirement for the Tribunal to consider whether that event caused trauma, or severe stress, or anxiety on the part of the veteran. Likewise, with the events of “rape”, “sexual molestation”, “being held captive, being kidnapped or being tortured”. In all of these events the obvious subjective trauma, stress and anxiety involved are irrelevant when considering whether the event hypothesised falls within the definition of a category 1A stressor.

51    It is possible that there may be a requirement to consider whether a physical attack, not involving rape or sexual molestation, is sufficiently serious within the terms of subpara (b), but that would occur at the stage where the Tribunal considers whether the hypothesis is supported, and not call for any assessment of the veteran’s subjective perception of the event. Beyond that, the Tribunal would act on the identification in the hypothesis of one of the events described in subpara (b) or (c). That being so, under the third step of Deledio, the Tribunal would look to see whether the veteran’s duly supported hypothesis meant he or she was involved in one of those events and, if so, it would conclude that the event fell within, or was consistent with, the SOP and move onto the fourth step. It follows, in my view, that there is no subjective element involved in determining whether a veteran’s hypothesis fits within, or is consistent with, one or more of the events described in subpara (b) or (c) of the definition of “a category 1A stressor”.

52    But these observations obviously may not apply to the event described in subpara (a): “experiencing a life-threatening event”. On its face, that event involves subjective factors. The question then is: How, and to what extent, should the Tribunal examine the feelings evoked in the veteran experiencing that event, to determine whether the event was life-threatening within that?

53    This brings me back to the Tribunal’s use of the test in Stoddart. I have already pointed out (at [22] above) that the Tribunal omitted the words “the event or events which are said to constitute” from the quotation from [55] of Stoddart. This omission is significant because it altered the subject of the assessment from the event or events that were said to constitute the threat, to the threat itself. I consider this alteration in subject matter lead the Tribunal into error. I will first explain the effect of this alteration and then identify the errors the Tribunal made.

54    As I have already observed above, the words of the definition of a category 1A stressor require that one or more events, which are said to be “severe traumatic events”, must have occurred. Among other things, I consider this means that it is the experiencing of the event or events that has to be the subject of the assessment, rather than the nature of the threat itself. Thus, for present purposes, the words of subpara (a) of the definition of a category 1A stressor make it necessary to assess whether the event experienced by the veteran was a life-threatening event, rather than whether the threat itself was. Mansfield J made this point very clearly (with respect) in Stoddart at [41]–[42] where he identified the error the Tribunal made in that case when it focused on the objective threat of death instead of the character of the event said to amount to the threat of death. He said this (at [42]):

The definition of “experiencing a severe stressor” relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity. One can posit various circumstances in which an event or events may present differing degrees of probability or possibility that they may present the threat of death or serious injury. It clearly is a threat to be confronted with a person holding a loaded cocked gun and who is threatening to shoot. But what if, unknown to the person experiencing the circumstances, the gun is unloaded? or is a replica only? or the distance is such that the person threatening to shoot is unlikely to hit the identified target, or is only remotely likely to do so? In all but the first illustration, with the full knowledge of the circumstances, the external observer could conclude that there was no actual risk of the gun being discharged and causing death or serious injury.

55    Similarly, in discussing the interaction between the threat of death or serious injury and the event or events that gave rise to it, he said this (at [50]):

The adjectival clause “that involved actual or threat of death or serious injury …” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury.

56    The Full Court made a similar observation in Woodward (at [136]) where it said:

When the question ultimately in issue involves the effect of an objectively stressful event upon a person’s mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of the reality, should be determinative. Examples that bring any such distinction into question come readily to mind: the passenger in an aircraft who overhears another saying that he has an explosive device, or the shopkeeper threatened with a shotgun (in fact unloaded) are just two such examples.

57    In other words, not only is it wrong to assess the nature of the threat itself, but it is also wrong to assess the character of the event said to pose the threat by reference to a full knowledge of all the circumstances, or all the objective facts.

58    Instead, the Tribunal has to assess the veteran’s perception of the event as an event that constitutes a life-threatening event. Mansfield J highlighted this point in Stoddart. At [46], he said:

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

59    He outlined the correct approach to the assessment at [50] and [55]. [55] is already set out above (see at [21]) and does not need repeating. At [50] he said:

That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them.

60    In Woodward, the Full Court approved this reasoning of Mansfield J in Stoddart saying (at [139]) that:

In his Honour’s opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.

61    While both Stoddart and Woodward involved definitions that contained specific mention of subjective feelings, I consider these observations are apposite to identify the subjective element involved in experiencing a category 1A stressor involving a life-threatening event.

62    Finally, there are two decisions of Tamberlin J that post date Woodward that are worth mentioning in relation to this objective subjective dichotomy. They are Delahunty v Repatriation Commission [2004] FCA 309 (“Delahunty”) and Guy v Repatriation Commission [2005] FCA 562 (“Guy”). In Delahunty, Tamberlin J referred (at [24]) to the fact that in Woodward the Full Court had pointed out that: “the ‘experience’ had to be based on an ‘event’ and that a figment of the imagination such as might arise through ‘paranoid ideation’ would not be sufficient to meet this requirement”. His Honour then observed (at [26]) that:

On the criteria adopted by the Woodward Full Court, it is necessary to ask whether there was an event. In my opinion, there was an objective event, namely the violent destruction of a sampan or junk. This is an objective fact. The next step is to have regard to the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events. This is a mixed objective and subjective test. The question then arises as to what the veteran’s position and knowledge was.

(emphasis in original)

63    Tamberlin J went on to consider the effect of the term “stressor” in the assessment of the reasonableness of the veteran’s perception based on his position and knowledge. While Delahunty dealt with the expression “experiencing a severe stressor” – the same as in Stoddart – I consider his Honour’s observations are helpful in identifying the objective and subjective components at work in the assessment that has to be undertaken. In particular, they emphasise the difference between reasonableness in the pure objective sense used in negligence cases and reasonableness in a more confined sense that applies here. Unlike the former, the latter takes into account the circumstances, knowledge and experience of the person claiming to have experienced a severe stressor. Further, his Honour emphasised that the latter assessment should not be done in an unduly restrictive manner. He said at [27]:

[27]    The term “stressor” denotes something which leads to stress. It is inherent in the notion of “stress” that there is a perception on behalf of an individual. The existence or extent of the stress will depend on each particular personality. This concept injects a subjective element into the determination. What will constitute a stressor in a particular set of circumstances can encompass a wide range of reactions among a variety of reasonable observers. As the Full Court in Woodward observes, in addition to the requirement that the observation is reasonable, the elements of knowledge of the particular person in the particular circumstances and with the experiences of that person, must be taken into account. It is clearly not a purely objective construct such as is applied in negligence cases. It is not a case of deciding how “the man on the Clapham omnibus” might react. There is more. The definition incorporates the reactions of persons with particular susceptibilities arising from a broad spectrum of background experiences and cognitive reactions. While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.

64    Because the word “stressor” is common to both definitions, I consider these observations are particularly relevant here.

65    In Guy, Tamberlin J dealt with a similar type of claim, but a different reaction. In that case, the veteran reacted to the event by removing himself from the danger. As a result, the Tribunal concluded that he may have suffered “an anxious moment”, but had not suffered from a severe stressor. Tamberlin J rejected that reasoning process. In doing so, his Honour emphasised that the correct approach was to assess whether the event was capable of (might or could) evoking the reaction in the veteran’s mind rather than assessing whether it did have that effect. He also emphasised that the focus was on the danger or the event itself rather than the veteran’s post-event conduct. He said (at [18]–[19]):

In the present case, the Tribunal accepted that the boiler room incident occurred and that this incident was such that it could be said that it might evoke intense fear, helplessness or horror (“the relevant emotions”). Furthermore, it accepted the evidence that the appellant had perceived that there was a risk of serious injury or death. Yet, notwithstanding this, the Tribunal focused on the fact that the appellant had acted as a reasonable person would react and removed himself from the danger. On this basis, it concluded that the veteran had actually suffered only “an anxious moment” and that, in fact, there was no incident which might evoke the relevant emotions.

This reasoning by the Tribunal is self-contradictory and indicative of an error of law. Once it is accepted that the veteran had perceived that there was a risk of serious injury or death and was confronted with an event which might evoke the relevant feelings, the definition in the SoP was satisfied. The Tribunal, in my view, in reaching its conclusion that the veteran had not experienced a severe stressor because there was only “an anxious moment” was applying the wrong test. Rather than asking whether the incident was of a type which might, as the Tribunal found, evoke the relevant emotions, the Tribunal asked whether the incident did evoke these emotions. Hence the reference to the incident being only “an anxious moment”.

(emphasis in original)

66    In this case, the Tribunal had before it two types of evidence, the medical evidence and the evidence given by Mr Border about the four events. However, none of the medical evidence dealt with the question whether the four events put forward by Mr Border were “life threatening”, as required by the 2008 PTSD SOP. Rather, the appellant’s treating doctors examined whether the appellant’s war service, as a whole, caused his PTSD. As a result, when the Tribunal reached stage three of the Deledio process it did not have any medical evidence before it to indicate whether the hypothesis described a life-threatening event within the terms of the 2008 PTSD SOP. If the Tribunal had been operating in a pre-1994 setting it may have been able to look to the medical evidence pointing to the connection between the appellant’s war service and his PTSD and move onto step four. Indeed, it seems to have embarked upon this exercise at [41] of its reasons. Of course, this was not open to it in a post-1994 case such as this. Here, the relevant SOP required that the appellant must have experienced a “life threatening” event before it could be said that a reasonable hypothesis had been raised connecting the PTSD with the appellant’s war service. In the absence of medical evidence, the Tribunal was left in much the same position as the Tribunal in Woodward – it had to interpret the SOP as best it could.

67    Based on these authorities, the answer to the question posed (at [53] above) in relation to the event described in subpara (a): “experiencing a life-threatening event” is this. The effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.

68    It is apparent from the Tribunal’s reasons (summarised at [15]–[36] above) that it correctly identified its task under the Deledio process, it came to an appropriate interpretation of the expression “a life threatening event” and it correctly identified the test it should follow, including the need to consider both the objective and subjective elements. Further, while the Tribunal failed to appreciate that Stoddart was dealing with step four of Deledio and, more importantly, was dealing with a different expression: “experiencing a severe stressor”, nonetheless the Tribunal correctly identified the appropriate objective subjective test from Stoddart, albeit that it misquoted that test so that the subject matter of the assessment became the threat itself, rather than the event giving rise to it. I will return to this matter in a moment. Finally, while it took the quote from Mines out of context and therefore claimed that at step three of Deledio “the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD”, it appeared to overcome that error by saying in the next sentence “there are no issues of credit in relation to the applicant’s version of events and therefore I am satisfied that the events occurred”. It follows that these aspects of the Tribunal’s reasons are free of vitiating error

69    However, as foreshadowed above, I consider the Tribunal fell into error when it came to apply the principles it had correctly identified, to each of the four events in Mr Border’s hypothesis. In other words, I consider it did not make the objective subjective assessment it had identified that it had to. In essence, I consider it assessed three of the events partly by reference to objective circumstances that either post-dated the event, or were unknown to Mr Border at the time. At the same time, I consider it did not properly assess the objective reasonableness of Mr Border’s perception of the event as life-threatening based upon his circumstances and state of knowledge at the time. I therefore consider the Tribunal’s approach involved errors of law of the kind identified by the Full Court in Hill. I will deal with each of the four events in turn.

The scorpion event

70    The Tribunal made findings that this event was “clearly a frightening event” that Mr Border “suffered a degree of panic” during it; and that he was “clearly … fearful for his future health”. It also found that the event was “undoubtedly a serious event” and “there [was] the possibility that [Mr Border] could have suffered a threat to his life had treatment not been available for a period of time”. Having made these findings, the Tribunal proceeded to take into account various sequels to the event, including the availability of hospital treatment, Mr Border’s uneventful recovery and his return to work. The Tribunal observed that: “In assessing such an unusual event, the size of the threat is not to be gauged by the size of the weapon (for example a scorpion versus, say, a rifle) but by the psychological impact of the event”. It then concluded by saying the event “does not seem to me to be an objective assessment of a reasonable person with full knowledge of the situation” (emphasis added).

71    In my view, the reasoning of the Tribunal about this scorpion event reveals at least two specific errors. First, it took into account matters that post-dated the scorpion sting itself and none of these matters was known to Mr Border at the time of the event. It therefore made its assessment by reference to all the objective circumstances, rather than by reference to the circumstances and knowledge of Mr Border at the time of the event. It confirmed as much where it said in its concluding comments that the event was not objectively life-threatening with “full knowledge of the situation”. Secondly, it found that the scorpion sting might have involved a threat to life and Mr Border was clearly “fearful for his future health”. In this context, I do not consider the finding that he was “fearful for his future health” could mean anything other than he was fearful for his life. The Tribunal therefore effectively found the event was life-threatening and Mr Border perceived it to be so. Having made these findings, I consider the Tribunal’s reasoning was self-contradictory when it then proceeded to reject the scorpion event as not being objectively life-threatening. In this respect, I consider the Tribunal fell into the same error as the Tribunal did in Guy.

72    For these reasons, I consider the Tribunal fell into error in its conclusion that the scorpion event did not constitute a life-threatening event within the terms of the 2008 PTSD SOP. As I have observed above (at [35]), Mr Border does not rely upon the combined effect of these four events, but the four events either individually, or as a composite group. That being so, an error in relation to the scorpion event would be sufficient, in itself, for Mr Border to succeed in his appeal. Nonetheless, since all the events were fully examined before me, I will proceed to consider whether the Tribunal made any errors in relation to any of the other three events.

The torch event

73    The Tribunal was quite entitled to consider the context of the torch event insofar as that context involved information that was known to Mr Border at the time of the event. However, I consider the Tribunal was wrong to speculate about what the soldiers may have known at the time (see at [31] above) and to take that into account in its assessment of this event. Further, it does not appear to have made any attempt to identify what Mr Border’s perception of this event was or, in other words, its subjective psychological impact on him. To the contrary, it seemed to gainsay that Mr Border might perceive it to be a life-threatening event by observing that he must have felt he was “being ridiculed”. Moreover, it did not assess what his perception of the event was, and then assess whether, based upon his circumstances and state of knowledge at the time, that perception was objectively reasonable. For these reasons, I also consider that the Tribunal erred in finding that the torch event did not constitute a life-threatening event within the terms of the 2008 PTSD SOP.

74    There is another dimension to this torch event that seemed to escape the attention of both counsel. It is that the threat to shoot Mr Border if he did not turn off the torch involved, on its face, being threatened with a weapon. It would therefore appear to fall within subpara (c) of the definition of a category 1A stressor. As I have observed above, unlike the previous definition, the current definition in the 2008 PTSD SOP does not require that the threat emanate from the enemy. As I have also observed above, the events described in subparas (b) and (c) fall within the definition of a category 1A stressor by their inherent nature and do not involve any subjective element. However, since this aspect was not raised before the Tribunal and no submissions were made on it by counsel before me, I will not go beyond making these observations.

The rockets event

75    Of the three events, this event is the one most intuitively suggestive of a life-threatening event. By any reasonable objective assessment, mishandling live rocket ammunition is patently capable of being life-threatening. The Tribunal’s reasons for rejecting this event as a life-threatening event are quite brief. They appear to involve only two aspects: the Tribunal’s views about the likely reaction to the event, rather than Mr Border’s perception of the event as life-threatening, and Mr Border’s realisation after the event that the sergeant involved was not particularly serious. In my view, both aspects demonstrate error. On the first aspect, as with the torch event, the Tribunal seems to gainsay Mr Border’s claim that it was life-threatening event by observing that he may have been humiliated by it, or that the event was unpleasant. As I have observed above, these observations are counter-intuitive More importantly, the Tribunal does not appear to have made any attempt to assess what Mr Border’s subjective perception of the event, as a life-threatening event was, taking into account his circumstances and state of knowledge at the time, and to then assess whether that perception was objectively reasonable.

76    On the second aspect, the Tribunal appears to have taken into account Mr Border’s post-event realisation of the true state of mind of the sergeant involved. Since this information was not known to Mr Border at the time, it is entirely irrelevant to the assessment the Tribunal had to make. The fact it mentioned it as a part of its reason for rejecting this event as a life-threatening event, therefore also suggests error. For these reasons, I consider the Tribunal fell into error in its rejection of the rockets event as a life-threatening event within the terms of the 2008 PTSD SOP.

The moved base event

77    As distinct from the obvious threat to life involved in mishandling live rocket ammunition, it is not easy to see how this event was objectively life-threatening. Nonetheless, the Tribunal was obligated to assess Mr Border’s subjective perception that it was life-threatening and to then assess that perception, applying the objective subjective test outlined above. The Tribunal’s reasons for rejecting this event are also very brief. However, of the four events, the Tribunal came closest, with this event, to assessing Mr Border’s subjective perception of the event based upon his circumstances and state of knowledge at the time. Nonetheless, having done so, based on a fair reading of the brief reasons it gave, it is not clear that it proceeded to assess whether that subjective perception was objectively reasonable applying the objective subjective test outlined above. I consider this conclusion is supported by the fact it did not do this in relation to any of the other three events above. For these reasons I consider the Tribunal also fell into error in rejecting this event as a life-threatening event within the terms of the 2008 PTSD SOP.

Conclusion

78    For these reasons, I consider this appeal must be allowed. The Tribunal’s decision must be set aside and Mr Border’s application must be remitted to the Tribunal to be reconsidered and determined according to law.

Associate:

Dated:    17 December 2010