FEDERAL COURT OF AUSTRALIA

Bawden v Repatriation Commission [2012] FCA 345

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal, made on 2 May 2011, affirming the decision under review, be set aside.

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

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The nature and history of the proceeding

1    This appeal is about the correct approach to take in applying the complex provisions of the Veterans’ Entitlements Act 1986 (Cth) (“the Veterans’ Entitlements Act”) to claims for pension involving conditions such as post traumatic stress disorder (“PTSD”), alcohol dependence and depressive disorder. At the heart of the appeal are the provisions relating to the establishment of a causal connection between a condition suffered by the veteran and the war service of the veteran. The first issue concerns the preliminary step of determining whether the veteran suffers from PTSD. The question is whether a finding as to the occurrence of a traumatic event belongs to that preliminary step or to the later process of determining the causal connection between PTSD and war service. The second issue concerns the application of the provisions relating to causation in the case of alcohol dependence and depressive disorder. As part of this issue, the question arises whether a finding of fact already made about the traumatic event (in the context of determining whether the veteran suffered from PTSD) can be relied on in the application of these statutory provisions.

2    The appeal is from a decision of the Administrative Appeals Tribunal, given on 2 May 2011. See Bawden v Repatriation Commission [2011] AATA 283. By s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), such an appeal is limited to a question of law.

3    The applicant, Mr Bawden, served in the Royal Australian Navy between 8 January 1964 and 7 January 1976. His service included nine voyages to Vietnam on HMAS Sydney between 1967 and 1969. The respondent, the Repatriation Commission (“the Commission”), accepted that Mr Bawden suffered certain war-caused conditions, but rejected claims for PTSD, alcohol dependence or alcohol abuse, and depressive disorder, on the basis that they were not war-caused. The Veterans’ Review Board affirmed the Commission’s decision. If Mr Bawden suffered from any of the rejected conditions, this might entitle him to a pension at a higher rate than he receives.

4    The Tribunal was satisfied that Mr Bawden’s service constituted “operational service” for the purposes of the Veterans’ Entitlements Act. The Tribunal identified as the issues before it, first, whether Mr Bawden suffered from PTSD and if so whether it was war-caused, and second, whether Mr Bawden suffered from any other psychological condition, including alcohol abuse or dependence and depressive disorder and, if so, whether such condition was war-caused. The Tribunal determined that Mr Bawden did not suffer from PTSD. It therefore had no occasion to consider whether PTSD was war-caused. The Tribunal then determined that Mr Bawden suffered from alcohol dependence and from depressive disorder. It proceeded to determine that neither of these conditions was war-caused.

The legislation

5    Part II of the Veterans’ Entitlements Act contains provisions relating to pensions. Section 13(1) provides relevantly that, where a veteran has become incapacitated from a war-caused injury or disease, the Commonwealth is, subject to the Veterans’ Entitlements Act, liable to pay pension by way of compensation to the veteran in accordance with the Veterans’ Entitlements Act. Section 14 provides for the making of a claim for a pension and s 15 provides for the making of an application for an increase in the rate of the pension. Section 16(a) entitles (among others) the veteran to make such a claim or application. By s 18, a claim or application is dealt with in the first place by the Commission. Division 4 of Pt II of the Veterans’ Entitlements Act contains provisions for different rates of pension. Section 31 provides for review of a decision of the Commission by the Veterans’ Review Board.

6    To see how a claim for a pension or an application for an increase in a pension is to be dealt with, it is necessary to go to Pt VIII of the Veterans’ Entitlements Act. Section 120 provides relevantly as follows:

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

…

(3)    In applying subsection (1)…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…;

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

(c)    that the death was war-caused…;

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

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

(5)    Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a)    an injury suffered by a person is a war-caused injury…;

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

(c)    the death of a person is war-caused…; or

(d)    a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6)    Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)    a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)    the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

7    Sections 120A and 120B were inserted into the Veterans’ Entitlements Act in conjunction with ss 196A and 196B. Section 196A establishes a Repatriation Medical Authority (“the Authority”). Section 196B(2) provides relevantly as follows:

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

…

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    Section 196B(3) makes provision for the Authority to determine a statement of principles applicable to cases of eligible war service other than operational service. Such a statement of principles must set out the factors that must exist, and which of those factors must be related to service rendered by a person, before it can be said that, on the balance of probabilities, an injury, disease or death of a particular kind is connected with the circumstances of that service.

9    The dichotomy between a veteran who has rendered operational service and a veteran who has rendered eligible war service other than operational service is reflected in ss 120A and 120B. Section 120A(3) provides relevantly:

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

...

that upholds the hypothesis.

10    Section 120A(4) provides that subs (3) does not apply if the Authority has neither determined a statement of principles nor declared that it does not propose to make one in respect of the kind of injury suffered, the kind of disease contracted, or the kind of death met, by a person.

11    By way of comparison, s 120B(3) provides in relation to a claim by a veteran who has rendered eligible war service that is not operational service, as follows:

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

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

(b)    there is in force:

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

…

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

Section 120B(4) contains a provision similar to that found in s 120A(4), relating to cases in which there is no applicable statement of principles.

The relevant Statements of Principles

12    At the time of the Tribunal’s decision, there was in force Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008, made by the Authority pursuant to s 196B of the Veterans’ Entitlements Act. Clause 3(b) of that statement defines PTSD as meaning a psychiatric condition meeting a number of diagnostic criteria, derived from DSM-IV-TR. Criterion (A) is as follows:

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;

DSM-IV-TR is defined in clause 9 to mean “the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000”. Clause 6 sets out a number of possible factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a person’s relevant service. They include:

(a)    experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or

(b)    experiencing a category 1B stressor before the clinical onset of posstraumatic stress disorder;

Clause 9 contains the following relevant definitions:

For the purposes of this Statement of Principles:

“a category 1A stressor” means 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;

“a category 1B stressor” means one of the following severe traumatic events:

(a)    being an eyewitness to a person being killed or critically injured;

(b)    viewing corpses or critically injured casualties as an eyewitness;

(c)    being an eyewitness to atrocities inflicted on another person or persons;

(d)    killing or maiming a person; or

(e)    being an eyewitness to or participating in, the clearance of critically injured casualties;

13    If Mr Bawden were to be unsuccessful when his case was tested against this statement of principles, in accordance with Repatriation Commission v Gorton [2001] FCA 1194 (2001) 110 FCR 321, the Tribunal would have been obliged to test his case by reference to Statement of Principles concerning Post Traumatic Stress Disorder No. 3 of 1999, as amended by Amendment of Statement of Principles concerning Post Traumatic Stress Disorder No. 54 of 1999, which was in force at an earlier relevant time. The terms of that statement of principles differed from the terms of no 5 of 2008, but it is unnecessary for present purposes to explore the differences.

14    The Tribunal applied two statements of principles concerning alcohol dependence and alcohol abuse, no 1 of 2009 and no 76 of 1998. Again, these differ in their terms. The former, in force at the time of the Tribunal’s decision, includes in the factors referred to in cl 6 that as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service, experiencing a category 1A stressor or a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse. The definitions of category 1A stressor and category 1B stressor are the same as those in statement of principles no 5 of 2008 relating to PTSD. The Tribunal also applied two statements of principles relating to depressive disorder, no 27 of 2008, in force at the time of the Tribunal’s decision and no 17 of 2007, in force at an earlier time. The relevant factors listed in cl 6 of statement of principles no 27 of 2008, also include experiencing a category 1A stressor or a category 1B stressor within the five years before the clinical onset of depressive disorder. Again, the definitions of category 1A stressor or 1B stressor match those in statement of principles no 5 of 2008 relating to PTSD. Statement of principles no 17 of 2007 is in similar terms.

The necessary steps

15    In order to make the task of a decision-maker in a case such as this easier, the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97]-[98] set out the steps that are necessary for the performance of the decision-maker’s task in determining whether there is a causal connection between war service and the condition of the veteran:

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

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

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

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

16    It must be understood that these four steps do not encompass the whole of the task of the decision-maker in relation to a claim for a pension. The four steps elucidate the regime established by ss 120(3), 120A(3), 120B(3) and 196(B)(2) and (3) of the Veterans’ Entitlements Act. That is to say, the four steps relate to the task of determining the existence of a causal connection between a condition (in this case a disease) from which the veteran is suffering and the operational service, or other war service, of that veteran. Prior to embarking on the first of the four steps, it is necessary for the decision-maker to determine whether the veteran is in fact suffering from the claimed condition. In making that determination, the decision-maker must make a determination according to the “reasonable satisfaction” standard mandated by s 120(4). It is now well-established that the “reasonable satisfaction” standard is equivalent to the ordinary civil standard of proof, namely satisfaction on the balance of probability.

17    The decision-maker must also bear in mind that neither the purpose of a statement of principles, nor the function of the Authority in making one, involves specifying diagnostic criteria for any particular condition. The definitions of diseases found in statements of principles are for the purpose of defining those conditions to which the statements of principles apply, not for the purpose of requiring the decision-maker to adhere to the diagnostic criteria to which those definitions refer.

18    The decision-maker’s task, therefore, is first to determine whether the veteran in a case such as the present suffers from a particular disease. If so, the decision-maker must then embark on the four steps set down in Deledio. If the hypothesis required by the first step arises on the evidence, the second step requires ascertainment as to whether there is in force a statement of principles applicable to the particular disease. The decision-maker must consider the definition of the disease in any possible statement of principles and determine whether the disease that he or she has found the veteran to have fits within that definition.

19    The important point is that the determination of whether there is a disease in a case such as the present is separate from the process of determining whether there is a causal connection between such a disease and the war service of the veteran, and subject to a different process of reasoning involving a different standard of satisfaction.

20    Problems have arisen in cases in which the diagnostic criteria applied by decision-makers in determining whether the veteran has a disease involve reference to particular causes of such a disease. Should the decision-maker, as part of the diagnosis process, determine on the balance of probabilities whether the causal event occurred, or should that determination be left to the four-step process set out in Deledio? I discussed this issue at length in Mines v Repatriation Commission [2004] FCA 1331 (2004) 86 ALD 62 at [37]-[50]. Following what was said by the Full Court in Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200 at [19], I concluded that a veteran is entitled to have the causal aspect of a claim for PTSD dealt with in accordance with the four-step process. Such a claim is not to be precluded by a finding that the decision-maker is not satisfied on the balance of probabilities that the traumatic event in question occurred, made at the initial stage of diagnosis.

21    There are at least two reasons for this. First, the clear policy underlying s 120 of the Veterans’ Entitlements Act is that the practical difficulties of establishing causation in respect of a condition from which the veteran might be suffering are such that such a veteran who has rendered operational service is entitled to succeed unless the decision-maker is satisfied beyond reasonable doubt that the alleged causal connection does not exist. By contrast, a veteran who has rendered war service that is not operational service is only entitled to succeed if the decision-maker is satisfied on the balance of probabilities that the alleged causal connection does exist. If the determination as to whether a particular traumatic event occurred is transferred from the process of determining causation to the process of diagnosing the veteran’s condition, then a veteran who has rendered operational service will be treated no differently as to causation from a veteran who has not rendered operational service. Such a result would not be in accordance with either the terms, or the underlying purpose, of s 120 of the Veterans’ Entitlements Act. Such an approach involves a failure to apply the four-step process of ascertaining whether there is a hypothesis, testing that hypothesis against the appropriate statement of principles (which, in the case of PTSD, includes references to traumatic events), and then turning to fact-finding to see if the hypothesis is excluded beyond reasonable doubt. This process is required by ss 120(3) and 120A(3) in the case of a veteran who has rendered operational service.

22    The second reason is that determining causation as part of the diagnostic process would lead to anomalies. For instance, a veteran with symptoms amounting to PTSD, possibly caused by one of two traumatic events, one associated with the veterans’ operational service and the other not, would be in a better position than a veteran with symptoms amounting to PTSD who points only to one alleged traumatic event as the cause. The decision-maker might find on the balance of probabilities that the former veteran was suffering PTSD, without making a finding as to which of the two traumatic events was the actual cause, but might find on the balance of probabilities that the latter veteran did not suffer from PTSD. The former veteran would then be entitled to have the question of causation (ie which of the two traumatic events was to be regarded as the actual cause) determined by the four-step process in accordance with ss 120(3) and 120A(3) of the Veterans’ Entitlements Act. The latter veteran would have been denied access to that process.

23    The proper approach of the decision-maker therefore, is to examine a claim for PTSD (or any other condition for which causation is said to be part of the diagnosis) without determining conclusively whether the alleged causal event occurred. The correct approach is the one taken in Budworth, examining the collection of symptoms and determining whether they constitute a disease for the purposes of entitling a veteran to a pension under the Veterans’ Entitlements Act. The question of the aetiology of the disease should be left to the four-step process in accordance with ss 120(3) and 120A(3) of the Veterans’ Entitlements Act.

Mr Bawden’s PTSD claim

24    At [4]-[21] of its reasons for decision, under the heading “does Mr Bawden suffer from PTSD?” the Tribunal discussed Mr Bawden’s PTSD claim. It identified its obligation to determine to its reasonable satisfaction whether Mr Bawden suffers from any particular injury or disease. It referred to the definition of PTSD in DSM-IV-TR and said that there must be both a traumatic event answering the description given (involving actual or threatened death or serious injury, or a threat to the physical integrity of self or others) and a response of the required intensity (intense fear, helplessness or horror).

25    The Tribunal then referred to authorities, quoting a passage from Mines at [48] that did not represent the conclusion reached in Mines. After reciting Mr Bawden’s history of service in the Navy, including his trips to Vung Tau Harbour in Vietnam on HMAS Sydney, the Tribunal addressed the traumatic event said to have been the cause of Mr Bawden’s PTSD symptoms. This was an event in Vung Tau Harbour, when Mr Bawden said he had observed a sampan being destroyed by a naval patrol boat. At [9], the Tribunal summarised Mr Bawden’s evidence about this event as follows:

He said that HMAS Sydney was at anchor in Vung Tau Harbour and he had completed his shift as a radio operator and was standing on the flight deck, when he heard a noise from a patrol boat sailing at speed towards the right side of the ship. Mr Bawden stated that the noise appeared to be instructions broadcast by loudspeaker. The patrol boat passed HMAS Sydney and emerged on the other side. He then noticed a sampan which appeared to be about 800 yards (about 730 metres) away. He did not see anyone on board the sampan, but then the patrol boat fired on the sampan, which exploded. He saw debris from the vessel in the water and watched as the patrol boat collected matter from the water, and he assumed this was bodies or body parts.

26    At [10], the Tribunal said that Mr Bawden initially feared for his own safety because he thought that HMAS Sydney was under attack. He then realised that the concern of the patrol boat was the sampan, which was heading towards the ship. Mr Bawden said he was horrified when the sampan exploded, because he imagined that the occupants had been killed. He returned to the mess and sat on his own and did not report his feelings to anyone because he feared the stigma of cowardice if he did so.

27    The Tribunal then summarised medical evidence, including accounts of the sampan incident that Mr Bawden had given to a psychologist and two psychiatrists. It referred to evidence of the absence of any record of the sinking of the sampan, but to the fact that a number of veterans had made similar claims.

28    At [17], the Tribunal accepted that Mr Bawden witnessed the destruction of a sampan by a patrol boat and found that the event occurred on 1 June 1968. It accepted that he may have been apprehensive when he first observed the patrol boat, but said that any concerns ceased soon afterwards when he realised that the patrol boat was dealing with the sampan. The Tribunal said there was no evidence of a lasting or significant fear for his safety after he acknowledged that the patrol boat was not an enemy vessel and posed no threat. The Tribunal therefore found that Mr Bawden did not experience or witness, and was not confronted with, an event involving actual or threatened death or serious injury of himself, or a threat to his physical integrity. After summarising the different accounts given by Mr Bawden as to the incident, the Tribunal found that Mr Bawden may have felt concern about any occupants of the sampan after the explosion, but his response did not involve intense fear, helplessness or horror.

29    At [20], the Tribunal concluded as follows:

In view of its findings on the sampan event, the Tribunal is reasonably satisfied that Mr Bawden was not exposed to an event or events that could be described as traumatic as is required for a diagnosis of PTSD, and the Tribunal concludes that Mr Bawden does not suffer from PTSD, so there is no need to determine whether this condition is war-caused.

30    In reasoning in this fashion, the Tribunal erred in law. It transferred the question whether there was a causal connection between the sampan incident and the claimed condition of PTSD from the four-step causation process to the diagnosis process. Having done so, it dealt with the question of causation according to the reasonable satisfaction standard, and not according to the process that uses the negative beyond reasonable doubt standard. It diverted itself from the consideration of the evidence about the symptoms of Mr Bawden, and the consideration of whether those symptoms were capable of amounting to PTSD, whatever had caused them. Mr Bawden has not had the benefit of having the Tribunal deal according to law with his claim for a pension on the basis that he suffers from PTSD.

The claims of alcohol abuse, alcohol dependence and depressive disorder

31    At [22]-[25], the Tribunal directed itself to the question of whether Mr Bawden suffers from any psychological condition other than PTSD, including alcohol abuse, alcohol dependence or depressive disorder. The Tribunal found that Mr Bawden suffers from alcohol dependence. It also found that Mr Bawden suffers from depressive disorder. In this respect, it acted correctly in not attempting as part of the process of diagnosis to deal with the question whether those conditions were related to Mr Bawden’s operational service by having resulted from his experience of the sampan incident.

32    The Tribunal then turned to the question whether Mr Bawden’s alcohol dependence was war-caused. At [26], the Tribunal recognised that it had to determine causation questions of the kind before it by applying the beyond reasonable doubt standard, in accordance with s 120(1) of the Veterans’ Entitlements Act. At [27], the Tribunal quoted the four steps from the judgment of the Full Court in Deledio. It then proceeded to summarise the evidence about Mr Bawden’s drinking history, including incidents up to December 1967 that either might have been, or were conceded to have been, occasions when Mr Bawden was drunk. At [31], the Tribunal referred to evidence that Mr Bawden began consuming methylated spirits and medicated wine after leaving HMAS Sydney in 1969. At [32], the Tribunal referred to what Mr Bawden had told two medical practitioners about his alcohol use. He told one that he commenced the use of alcohol on a very heavy basis during his military service, and the other that his heavy drinking commenced after the traumatic events on HMAS Sydney.

33    At [33], the Tribunal determined that the material pointed to a hypothesis connecting Mr Bawden’s alcohol dependence with his operational service. The Tribunal did not specify what the hypothesis was.

34    The Tribunal then embarked on the second step, referring to the two relevant statements of principles. It set out provisions of those, including the definitions of category 1A stressor and category 1B stressor from no 1 of 2009, and equivalent provisions in no 76 of 1998. The Tribunal then referred to authority about the meaning of the term “clinical onset” at [38], before summarising the evidence of that clinical onset at [39]. At [40], the Tribunal said:

Despite the poor recollection of events by Mr Bawden, the Tribunal takes into account the evidence from Mr Bawden, Dr Been and Dr White and the events involving hospital admissions and civil convictions raised with Mr Bawden during cross-examination, including his concession that some of the events would not have occurred if he had been sober. His history of drinking shows a pattern that commenced during initial training on HMAS Leeuwin in 1964 and became more serious when he served on HMAS Anzac in 1965, before joining HMAS Sydney. His drinking increased throughout his service and has continued ever since, apart from a three-year period of abstinence. In all the circumstances the Tribunal finds that by the time of operational service Mr Bawden already had an established pattern of heavy drinking which constituted alcohol dependence, and that clinical onset of the condition occurred in about 1965.

35    Despite its protestation at the beginning of [41] that, “In relation to the third step from Deledio the Tribunal is not making any findings of fact”, the Tribunal plainly did make findings of fact in [40]. In the last sentence, it made a specific finding that, by the time of his operational service, Mr Bawden already had an established pattern of heavy drinking constituting alcohol dependence and that the clinical onset of that condition occurred in about 1965. This was far removed from the Deledio process. A finding that the material points to a hypothesis of the kind required by the first step in that process cannot involve findings as to when events occurred or did not occur. Clearly, a hypothesis that located the clinical onset of alcohol dependence at a time prior to the occurrence of the sampan incident would not have established a causal relationship between the sampan incident and Mr Bawden’s alcohol dependence. The Tribunal had no business determining that a hypothesis involving those facts was demonstrated by the material. The Tribunal ought to have addressed itself to the hypothesis that Mr Bawden was obviously seeking to raise, namely that it was the sampan incident that led to the onset of his heavy drinking and therefore to his alcohol dependence. The Tribunal needed to determine whether the material raised that hypothesis. In this respect, the Tribunal might have focused on the evidence that Mr Bawden had told one medical practitioner that the heavy drinking commenced after the traumatic events on HMAS Sydney, and on the evidence that he began to consume methylated spirits and medicated wine after he left HMAS Sydney in 1969. Had it done so, it might have found, in accordance with the first step of the Deledio process, that the material disclosed a hypothesis connecting Mr Bawden’s alcohol dependence with the sampan incident, and therefore with his operational service. Instead of doing this, the Tribunal made findings as to an irrelevant hypothesis at [40].

36    At [42], the Tribunal went a step further. It said:

In view of its finding, that the sampan event did not constitute a traumatic event or severe stressor that evoked a response involving intense fear, helplessness or horror that would satisfy the criteria for a diagnosis of PTSD, the material does not point to a reasonable hypothesis linking Mr Bawden’s alcohol dependence to his operational service with respect to factors 6(b) and 6(c) of SoP No 1 of 2009, and also factors 5(b) and 5(d) of SoP No 76 of 1998.

The factors to which the Tribunal referred were those relating to the experiencing of category 1A or category 1B stressors or other events that qualified as severe stressors. Once again, at [42], the Tribunal was making findings of fact. It was not comparing a hypothesis with a statement of principles to see whether the hypothesis fitted the template in that statement. It was comparing its own earlier findings of fact about the sampan incident with that template. This was not the process that the Tribunal should have been following.

37    At [43], the Tribunal said:

In respect of factor 6(a) of the SoPs, in view of the Tribunal’s conclusion about the date of clinical onset of alcohol dependence, in 1965 Mr Bawden did not suffer from a clinically significant psychiatric condition, so the material does not point to a reasonable hypothesis linking Mr Bawden’s alcohol dependence to his operational service with respect to factor 6(a) of SoP No 1 of 2009 or factor 5(a) of SoP No 76 of 1998.

This paragraph demonstrates the confusion of the Tribunal. It referred to its finding about the date of clinical onset of alcohol dependence, made a new finding that Mr Bawden did not suffer from a clinically significant psychiatric condition in 1965, and then stated a conclusion about the reasonableness of a hypothesis. The use of fact-finding at either the first stage or the third stage of the Deledio process was illegitimate.

38    Not surprisingly, the Tribunal then expressed the conclusion at [44] that the hypothesis was not reasonable and did not fit the relevant statements of principles, so Mr Bawden did not satisfy the third step. For this reason, the Tribunal said it was satisfied beyond reasonable doubt that there was no causal connection between his alcohol dependence and his operational service.

39    In this process of reasoning, the Tribunal did not follow the four steps set out in Deledio. It failed to take the first step correctly, by identifying what hypothesis the material did disclose (if any) that would lead to a conclusion that the necessary causal connection was established. Instead, by making findings of fact, the Tribunal constructed another hypothesis that would not make that causal connection. It diverted itself to examining this hypothesis against the relevant statements of principles, making more findings of fact as it did so. It seems clear that, in making the findings of fact it did, the Tribunal was not applying the negative beyond reasonable doubt standard.

40    In reasoning in this way, the Tribunal erred in law.

41    The Tribunal then turned its attention at [45]-[54] to the question whether Mr Bawden’s depressive disorder was war-caused. Again, the Tribunal found the material pointed to a hypothesis connecting this condition with the circumstances of the service rendered by Mr Bawden. Again, it did not specify what the hypothesis was. After referring to the two relevant statements of principles, the Tribunal turned to the question of clinical onset. At [51], it said that, “Although there is difficulty in being precise, on balance the Tribunal finds that clinical onset of depressive disorder occurred in about 2006”. Clearly, the Tribunal was engaging in fact-finding about the date of clinical onset. It was doing so, as it said, “on balance” and not by applying the standard in s 120(1) of the Veterans’ Entitlements Act. It was doing so at the third step of the Deledio process, where it ought not to have been finding facts, but ought to have been comparing a hypothesis to the template in a relevant statement of principles. Indeed, the Tribunal was purporting to engage in that exercise, but was doing so by finding facts.

42    The Tribunal continued with this process at [52]. It referred to “its finding that the sampan event did not constitute a traumatic event or severe stressor that evoked a response involving intense fear, helplessness or horror” and relied on that finding to conclude that the material did not point to a reasonable hypothesis linking Mr Bawden’s depressive disorder to his operational service with respect to factors that required the experiencing of stressors. Reliance on an earlier finding of fact, expressly made on the “reasonable satisfaction” standard, was impermissible at any stage, but particularly at the third stage, of the Deledio process. Again, the Tribunal erred in law in finding that the hypothesis was not a reasonable one and did not fit the relevant statements of principles and that it was therefore satisfied beyond reasonable doubt that there was no causal connection between Mr Bawden’s depressive disorder and his operational service.

Conclusion

43    These errors of law by the Tribunal at all stages of its determination of Mr Bawden’s claims deprived him of the chance of having those claims dealt with according to law, and possibly deprived him of a successful result in relation to each of them. The appeal must therefore be allowed. The decision of the Tribunal must be set aside. The case must be remitted to the Tribunal, to be heard and decided again. In accordance with the ordinary principle, that costs follow the event, the Commission should be ordered to pay Mr Bawden’s costs of the proceeding.

Associate:

Dated:    5 April 2012