FEDERAL COURT OF AUSTRALIA

Simos v Repatriation Commission [2013] FCA 607

THE COURT ORDERS THAT:

1.     The appeal be allowed.

2.    The decision of the Tribunal be set aside.

3.    The case be remitted to the Tribunal as originally constituted to be heard and decided again without the hearing of further evidence, consistently with these reasons.

4.    The first respondent pay the appellant’s costs of this appeal.

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

REASONS FOR JUDGMENT

1    The applicant (“Mr Simos”) is a veteran of the war in Vietnam. In 2009 he applied for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). He said that he was suffering from a psychiatric disorder, alcohol abuse or dependence, hypertension, atrial fibrillation and asthma. He said that each of these conditions was war caused. He had served in Vietnam in 1971 for 51 days. The claim was rejected by the Repatriation Commission (“the Commission”) and that rejection was affirmed on review by the Veterans’ Review Board (“the Board”). Mr Simos applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the Board’s decision. The Tribunal affirmed the Board’s decision. This appeal is brought from the decision of the Tribunal.

2    An appeal to this Court may be brought “on a question of law” under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). At the hearing of the appeal I raised with counsel the issue of whether Mr Simos’ notice of appeal contained any questions of law. As a result counsel for Mr Simos sought, and I granted, leave to file an amended notice of appeal which raised “pure” questions of law: see Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60. The existence of such questions is necessary to found the jurisdiction of the Court under s 44: see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070 (per Gummow J). I am satisfied that the amended notice contains questions of law which meet the requirements of s 44.

3    In order to understand the manner in which the Tribunal approached its task it is necessary to say something shortly about the relevant legislation and the construction of that legislation by this Court.

4    By s 9 of the Act it is provided that an injury or disease is to be taken as war-caused if it arose out of or was attributable to any eligible war service or resulted from something which occurred while the veteran was rendering operational service. It was common ground that Mr Simos rendered operational service in Vietnam in 1971.

5    The legislation contains evidentiary provisions which operate to the benefit of a veteran who applies for a pension under it. Sub-sections (1) and (3) of s 120 provide:

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

…

(3)    In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)    that the injury was a war-caused injury or defence-caused injury;

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

(c)    that the death was war-caused or defence-caused;

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

6    Section 120A provides, that for the purposes of s 120(3) “a hypothesis connecting an injury suffered by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force”, relevantly, a statement of principles (“SoP”) determined under the Act.

7    These provisions were considered by a Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Court determined that a four step process was necessary in order to establish an applicant’s entitlement to a pension under the Act. Those steps, which the Court identified at 97-8, were:

“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.”

8    It was common ground that there was a relevant SoP for each of the conditions suffered by Mr Simos. That for generalised anxiety disorder is of principal relevance. It defines the condition by reference to diagnostic criteria. One of these (criterion E) is that: “The anxiety, worry, or physical symptoms ... cause clinically significant distress or impairment in social, occupational or other important areas of functioning …”. The SoP goes on to identify the factors which must be established in order for it to be found that a reasonable hypothesis had been raised connecting Mr Simos’ anxiety disorder with the circumstances of his service. They were relevantly:

“Factors

6.     The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder … with the circumstances of a person’s relevant service is:

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

(i)     …

(ii)     experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or

(iii)     experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or

(iv)     having a significant other who experiences a category 1A stressor within the two years before the clinical onset of anxiety disorder; or

(v)     experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder; or

(vi)     having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder;

(vii)     …

(viii)     …

(xi)     …

(x)    …

7.     …

8.     …

9.     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)     …

(c)     …

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

(a)     …

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

(c)    …

(d)    …

(e)    …

“a category 2 stressor” means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

(a)     being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;

…

“a clinically significant psychiatric condition” means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.”

MR SIMOS’ CASE BEFORE THE TRIBUNAL

9    Mr Simos told the Tribunal of four stressful incidents which he had experienced during his time in South Vietnam. Two of these are of present relevance. They were described as the “body bag incident” and “the patrol incident”.

10    Mr Simos described seeing body bags on hospital-like trolleys being loaded on to US aeroplanes at Saigon airport on the day on which he arrived in South Vietnam. Mr Simos had been about 50 metres from the trolleys when he made his observation. Mr Simos said that his reaction to seeing the body bags was a feeling of numbness and a realisation that he was in a war zone.

11    The patrol incident occurred during a night patrol. Mr Simos and a fellow soldier were in a bunker. They saw what they thought was movement in long grass about 100 metres distant from their position. The other soldier opened fire in the direction of the movement with an M60 machine gun. Mr Simos said that this caused him to freeze and feel traumatized. He told a psychiatrist that the movement he had seen could have been caused by an animal, but “the thing I recall is the fear.”

12    Expert evidence was called on both sides as to the psychiatric impact of these events on Mr Simos. On the basis of that evidence counsel for Mr Simos submitted that Mr Simos suffered from the following medical conditions:

    Generalised anxiety disorder (“GAD”);

    Depressive disorder;

    Alcohol abuse or dependence;

    Hypertension;

    Atrial fibrillation; and

    Asthma.

13    Counsel advanced what was said, by the Tribunal, to be a “complex hypothesis”. It was:

“… that Mr Simos’ war-caused GAD led to both depression and alcohol misuse (abuse or dependence) and either the GAD or the alcohol dependence/abuse were a contributing factor to his development of hypertension in 1992. The hypertension in return resulted in the development of atrial fibrillation/flutter or in the alternative, Mr Simos’ high alcohol intake was a causal factor in the development of atrial fibrillation/flutter.”

14    A second, less complicated, hypothesis was also advanced in relation to Mr Simos’ asthma condition. No alleged error was identified which related to this second hypothesis.

THE TRIBUNAL’S DECISION

15    The Tribunal commenced its analysis by noting the observation of the Full Court of this Court in McKenna v Repatriation Commission (1999) 86 FCR 144 at 151 that: “[a] complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts.”

16    The Tribunal then set out the four step process which had been articulated in Deledio and determined that “the material points to the hypotheses [identified above at [13]-[14]] (step 1) and that there [were] SoPs in existence for each of the medical conditions found to exist (step 2).” It then turned to step 3.

17    It quoted the relevant parts of the SoP for GAD. It continued:

“105.    The material does not point to there being any life threatening event during Mr Simos’ service; he did not view a corpse or a critical (sic) injured casualty at any time, although he claims to have seen body bags at Saigon Airport from a distance of 50 metres or that he was socially isolated while in Vietnam. In addition, criterion E of the SoP concerned anxiety disorder is not met despite seeing his GP on a regular basis from January 1981 to the present time, as the definition of a clinically significant psychiatric condition warranting ongoing management did not apply until 1998, when Mr Simos commenced treatment by a clinical psychologist.

106.    As the template provided by the SoPs is not met the hypothesis linking Mr Simos’ GAD to his operational service fails at step 3 of the Deledio process.

107.    As all other links in the complex hypothesis raised by the applicant are dependent on his psychiatric disorder being war-caused, the entire hypothesis is unreasonable.”

18    Having so determined it was not strictly necessary for the Tribunal to proceed to deal with step 4 in the Deledio process. It did so, however, lest it had been in error in dealing with step 3.

19    Step 4 required the Tribunal to consider whether it was satisfied beyond reasonable doubt that Mr Simos’ incapacity did not arise from a war-caused injury. This stage of the process required the Tribunal to give consideration to the evidence before it and make factual findings.

20    In dealing with the evidence the Tribunal said that:

“109.    Both Mr Simos and Dr Collier [Mr Simos’ treating psychiatrist] agreed there was no objective event meeting the definition of a 1A stressor sub-paragraph (a) of experiencing a life threatening event. Dr Strauss [a consultant psychiatrist called by the respondent] was unable to say that Mr Simos met any of the stressor definitions (1A, 1B or 2). Dr Entwisle [a consultant psychiatrist called by Mr Simos] considered the Nui Dat patrol event to be a 1A stressor. Both Dr Collier and Dr Entwisle considered the viewing of body bags as meeting the 1B stressor definition of viewing corpses or critically injured casualties as an eyewitness. Dr Entwisle expressed doubt that Mr Simos’ claimed isolation in Vietnam satisfied the definition of a category 2 stressor.

110.    All three psychiatrists considered Mr Simos’ more recent health issues, his wife’s illness and the ensuing stillbirth in 1975, his children’s psychiatric disorders and the forced sale of his business in 1998 or 1999 as being contributory stressors importing a cumulative effect on any underlying war-caused psychiatric disorder. Dr Entwisle equated Mrs Simos’ severe health threat in 1975 with a 1A stressor and Dr Collier considered Mr Simos’ recent health issues (cough syncope, atrial fibrillation and epilepsy) as 1A stressors. They did however acknowledge that ultimately the assessment of the stressors was a question for the Tribunal.

111.    Neither Dr Entwisle nor Dr Collier had a complete history of all the stressful episodes and Dr Collier had relied, to a major extent, on information obtained from Mrs Simos from 2007 onwards. In contrast the assessment of 2002 was confined to information given from Mr Simos alone. The Tribunal accepts that Mrs Simos has been a keen observer of her husband’s physical and mental status. However, she has not been privy to his subjective responses to any of the many stressors he may have experienced given his refusal to discuss his Vietnam experience until 1998; nor his continuing reluctance to discuss any response to the stillbirth of their first child.

112.     …

113.    As there was no actual life threatening event, Mr Simos has argued that the Tribunal should assess his claim that GAD was war-caused on the basis of his subjective response alone.

114.    The applicant’s Statement of Facts and Contentions relied on the authority of Woodward v Repatriation Commission (2003) 200 ALR 332 and Delahunty v Repatriation Commission [2004] FCA 309 in relation to severe stressors. As correctly pointed out by [counsel for the respondent] both of these cases related to a claim that PTSD and the SoP for this condition differs substantially from that for GAD both in terms of diagnostic criteria and the definition of a severe stressor. The relevant SoP for GAD in this matter is more prescriptive. The word confronted is absent from SoP Instrument No 101 of 2007 as is the phrase a person’s response involved intense fear, helplessness or horror. Mr Simos has described his response to the Nui Dat patrol incident as feeling numb. At other times in his evidence he said he felt traumatised by this event. He had difficulty explaining what he meant by the term traumatised but after some hesitation said that it was fear. Despite this response he said he and his colleagues laughed about the incident and he did not think about the event until well after his return to Australia. His response to seeing body bags at Saigon Airport on 16 September 1971 was couched in terms of realising he was in a war zone. Mr Simos continues to feel angry about the way the Vietnam Veterans were treated by the Government and civilian population on their return to Australia and considers the Vietnam War was worth fighting.” (Emphasis added in paras 109 and 113).

21    The Tribunal then turned to consider whether “experiencing a severe stressor” involved both subjective and objective elements. It referred to passages from the joint judgment in Woodward. The Court had examined authorities which suggested that the phrase had both subjective and objective components. It quoted from a passage of the judgment of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at 294 [50] in which his Honour had said:

“In my judgment, the meaning of the word ‘threat’ as used in the definition of ‘experiencing a severe stressor’ does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. 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 or serious injury …”

22    The Full Court found Mansfield J’s analysis to be persuasive but said at [141] that it “express[ed] no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable …”

23    The Tribunal identified a series of inconsistencies in Mr Simos’ evidence relating to the psychiatric effects on him of seeing the body bags. It was not satisfied with Mr Simos’ evidence on the point and rejected his claims on credibility grounds. It did not accept that the patrol incident was “objectively reasonable”. Accordingly it expressed itself to be “satisfied beyond reasonable doubt that there [were] no sufficient grounds for making the determination that Mr Simos’ diseases were war-caused.”

THE APPELLANT’S SUBMISSIONS

24    Mr Simos submitted that the Tribunal had erred by:

    Finding that the material before it did not point to there having been any life-threatening event during his military service.

    Misdirecting itself as to what constitutes an objectively reasonable perception that an incident was life-threatening.

    Failing to determine what was meant by the expression “viewing corpses or critically injured casualties as an eyewitness.”

    Failing to disclose any adequate reasons for rejecting the construction of the expression “viewing corpses or critically injured casualties as an eye witness” which had been advanced by the psychiatrists who gave evidence for Mr Simos.

    Misapplying the definition of “a clinically significant psychiatric condition” by basing its decision on a finding that the applicant’s condition did not warrant ongoing management until 1998.

CONSIDERATION

A life-threatening event?

25    The first two grounds related to the patrol incident. Mr Simos had contended that this incident constituted a category 1A stressor within the meaning of clause 9(a) of the GAD SoP.

26    In dealing with step 3 in the Deledio process the Tribunal had concluded that “[t]he material does not point to there being any life-threatening event during Mr Simos’ service”: at [105] – see above at [17].

27    Mr Simos complained that the Tribunal had failed to make a finding as to whether his perception had been reasonably capable of evoking the necessary response. The Tribunal had confined itself to an objective assessment of the nature of the threat and had thereby committed jurisdictional error in concluding that Mr Simos had not experienced any life-threatening event during his service. A fair reading of the Tribunal’s reasons suggests that the reverse is true and that Mr Simos’ real complaint is that the Tribunal confined itself to a consideration of his subjective response to the patrol incident and failed to make a reasoned determination as to whether or not the patrol incident was a life-threatening event. This is a significant matter to which I will return.

28    Mr Simos further submitted that the Tribunal had misdirected itself as to what constitutes an objectively reasonable perception that an incident is life-threatening. He acknowledged that the SoP did not contain a definition of what constituted a “life-threatening event.” He did, however, rely on the meaning placed on the expression by Reeves J in Border v Repatriation Commission (No 2) [2010] FCA 1430. His Honour there said (at [67]) that it is:

“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 sub para (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…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 … 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.”

29    Mr Simos submitted that the Tribunal had failed to make what he described as the “mixed objective and subjective assessment” which he said was required when the Tribunal was deciding whether a veteran’s perception that an event posed a threat of death had been reasonable. He directed particular attention to the Tribunal’s statement at [113] – see above at [20] – that “there was no actual life threatening event.” He also contended that the Tribunal had erred by taking into account an irrelevant consideration when deciding what constituted an objectively reasonable perception that an incident was life threatening. This error, he said, was apparent from paragraph [114] of the Tribunal’s reasons where it had said that Mr Simos had described his reaction to the patrol incident as “feeling numb”, feeling “traumatised” and “fear” but went on to note that “[d]espite this response he said that he and his colleagues laughed about the incident and he did not think about the event until well after his return to Australia”: at [114] –see above at [20].

30    When dealing with the issue of whether or not Mr Simos had experienced a life-threatening event, at the Deledio step 3 stage, the Tribunal was not engaged in a fact finding exercise. It was concerned to determine whether the hypothesis that Mr Simos suffered a war caused generalised anxiety disorder fitted within the “template” constructed by the SoP. That required the identification of one or more of the factors prescribed by the SoP which had to exist and be related to war service. Relevantly, Mr Simos claimed to have experienced a category 1A stressor: see clause 6(ii). He said that he had done so because he had experienced a life threatening event: see clause 9(a). That life threatening event was a collection of experiences which together constituted the patrol incident.

31    The Tribunal concluded that the material did not point to Mr Simos having experienced any life threatening event during his service. It did not say why it had come to this conclusion and, in particular, why the patrol incident did not constitute a life threatening event. The Tribunal’s conclusion depended on it being correct, as a matter of law, that, on no view, could the patrol incident, as described by Mr Simos, have constituted a “life threatening event” within the meaning of clause 9(a) of the SoP. The Tribunal did not, however, expressly so hold. This may have been because it had understood counsel for Mr Simos to have conceded in argument that the patrol incident could not, objectively, be viewed as a life threatening event within the meaning of the SoP. A reading of the transcript discloses no express concession to this effect. The Tribunal may, however, have concluded that the concession had been made implicitly when counsel for Mr Simos, having referred to some passages in the Full Court’s judgment in Woodward, then said:

“So – and they go on to say that the question involves both an objective test, in the sense of looking at the person and looking at the event and saying, right is that capable of causing trauma? And also very much a subjective test, and in this case, the relevance of Mr Simos being, we would say, very under-trained and open to being shocked or traumatised is relevant to the subjective part of that equation.”

32    Counsel’s emphasis on Mr Simos’ subjective reaction to a perceived threat to his life from an unseen enemy and his relative silence in relation to an objective assessment of the incident may have led the Tribunal to the view that no attempt was being made to persuade it that an objective basis existed for the patrol incident to be treated as a life threatening event.

33    When the Tribunal returned to the issue at stage 4 of the Deledio process, it directed itself, consistently with Woodward and Stoddart, that there were both objective and subjective elements in the assessment of whether or not an applicant had experienced a severe stressor. It did not accept that the patrol incident could be regarded as being “objectively reasonable”. It did not, however, say why this was so.

34    There is no doubt that an event, or series of events, may be so trivial or innocuous as not to amount, objectively, to a life-threatening event: cf White v Repatriation Commission [2004] FCA 633 at [32] (per Spender J). In that case the Tribunal had held that the events relied on by the applicant did not meet the objective requirements of an identifiable occurrence within the meaning of the relevant definition. It had given its reasons for so concluding. In these circumstances Spender J rejected the submission of the applicant that he was entitled to succeed on the basis of his sujective response to the events which he found to be stressful.

35    It may be that there was evidence, in the present matter, which the Tribunal could have accepted and which persuaded it that no objective foundation existed for the claim that the patrol incident constituted a life-threatening event. One of the specialist doctors who had been called by Mr Simos gave evidence that the patrol incident, as it had been described to him by Mr Simos, did not involve any objective threat to life. Evidence was also called from a researcher who had examined records relating to Mr Simos’ service. On one view of it, that evidence cast doubt on there ever having been an incident of the kind described by Mr Simos. The Tribunal did not, however, do more than record that such evidence had been given. Although he did not expressly concede that the patrol incident could not be regarded, objectively, as a life-threatening event, counsel for Mr Simos in the Tribunal did not develop any detailed arguments supporting the making of a finding to this effect.

36    In the end, I have concluded that the Tribunal dealt with Mr Simos’ claim to have experienced a category 1A stressor on the mistaken basis that Mr Simos did not assert that the patrol incident could, objectively, be regarded as a life-threatening event. This mistake was critical in the determination that was a central question on Mr Simos’ appeal. In the absence of an objective basis for this claim it was bound to fail. The Tribunal recorded (at [109] – see above at [20]) that Mr Simos had agreed that “there was no objective event meeting the definition of a 1A stressor sub-paragraph (a) of experiencing a life-threatening event.” The Tribunal’s failure to give any detailed consideration to this aspect of Mr Simos’ claim strongly suggests that it accepted and acted on what it considered to be a concession that no objective basis for the claim existed. No such concession was made.

37    Although the parties did not invite me to do so, I gave consideration to the exercise of the Court’s powers under s 44(7) of the AAT Act to attempt to undertake the additional fact finding necessary to determine whether a foundation existed for the Tribunal’s conclusion that the patrol incident was not “objectively reasonable”. Having considered the matter I determined not to exercise this power. Relevant evidence was, to some extent, conflicting and the Tribunal was best placed to assess the weight which should be given to it.

38    The appropriate remedy is to allow the appeal on this ground and remit his application to the Tribunal constituted by the member who made the original decision to be decided again without the hearing of further evidence.

“Viewing corpses or critically injured casualties as an eye witness”

39    This alleged error was also said to be disclosed in paragraph [105] of the Tribunal’s reasons – see above at [17]. The Tribunal had there said that Mr Simos had not experienced a category 1B stressor as defined because “he did not view a corpse or a critically injured casualty at any time, although he claims to have seen body bags at Saigon Airport from a distance of 50 metres.” Its conclusion could only be supported if, as a matter of law, Mr Simos’ observations of body bags could not be equated with viewing a corpse. The Tribunal appears to have taken this as being self-evident.

40    Mr Simos submitted that the word “corpse” should be given its widest meaning and should not be read down to require direct or immediate observation of the whole or part of an unconcealed body. A generous construction was warranted given that the Act was beneficial legislation. Mr Simos submitted that a veteran who had “seen a corpse in a body bag”, must be taken to have “viewed a corpse … as an eye witness.”

41    As its name suggests the Act has, in many cases, been characterised as being remedial or beneficial legislation: see, for example, Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225; Repatriation Commission v Hawkins (1993) 45 FCR 205 at 211. Such legislation (and subordinate instruments made under it) is to be construed as generously as the language of a particular provision allows: see Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638. That general proposition was, however, qualified by the plurality in Khoury when it said (at 638) that “the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must … be restrained within the confines of ‘the actual language employed’ and what is ‘fairly open’ on the words used.”

42    The viewing of corpses was one of a number of “severe traumatic events” referred to in the definition of “a category 1B stressor” in clause 9 of the SoP. The phrase “viewing corpses” must be construed having regard to the language employed by the draftsman and the context in which the words appear.

43    It is, therefore, necessary to have regard to the definition as a whole. It reads:

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

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

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

(c)    being an eye witness 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”

44    Each of the events described in the definition involves the observation, by the veteran, of the infliction of serious physical harm or death or the subsequent observation of dead or maimed victims. The veteran is confronted with a dead or badly injured person. There is, in my view, no persuasive textual basis for extending the reach of the definition to cover observations made after a victim has been treated in hospital or has been embalmed and placed in a body bag or a coffin. Observations of this latter kind are removed from the close temporal proximity of the observation of the infliction of harm on the victim or of its immediate consequences which are the severe traumatic events comprehended by the definition.

45    Mr Simos did not view a corpse when he saw body bags at Saigon Airport. The Tribunal was correct in holding that this observation did not fall within the definition of a category 1B stressor in clause 9 of the SoP.

Adequacy of reasons

46    This ground also relates to the body bag incident. As already noted the Tribunal said that Mr Simos had not experienced a category 1B stressor because he had not viewed a corpse, but did not give reasons for reaching this conclusion.

47    In paragraph [109] of its reasons – see above at [20] – the Tribunal recorded that Doctors Collier and Entwisle had “considered the viewing of the body bags as meeting the 1B stressor definition of viewing corpses … as an eye witness.” Despite this the Tribunal had failed to disclose in its reasons why it was that it disagreed with the conclusion of the two doctors as to the construction of the definition of “a category 1B stressor” in clause 9 of the SoP.

48    Mr Simos submitted that the Tribunal had failed to comply with its obligations, imposed by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to include in its reasons findings on material questions of fact and references to the evidence or other material on which those findings were based.

49    A debate persists as to the consequences of a failure by a tribunal to satisfy a statutory obligation to provide reasons for its decisions: see Kocak v Wingfoot Australia Partners Pty Ltd (2012) 295 ALR 730. On one view such a failure, of itself, constitutes reviewable or appellable error: see Dornan v Riordan (1990) 24 FCR 564. The weight of authority, however, favours the view that such an error cannot be relied on to impugn the decision to which the inadequate reasons relate: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; Kennedy v Australian Fisheries Management Authority (2009) 182 FCR 411. The legal effect of a failure by the Tribunal to provide any or adequate reasons was considered by Brennan J in Repatriation Commission v O’Brien (1985) 155 CLR 422. His Honour (with whom Murphy J generally agreed) said (at 445-6) that:

“It is not clear to me that the [Tribunal] did fail to expose its reasons for rejecting Mr O’Brien’s claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside.”

See also: Comcare Australia v Lees (1997) 151 ALR 647 at 656-9 (per Finkelstein J). Both these cases involved appeals to this Court from the Tribunal under s 44 of the AAT Act.

50    It is not necessary, for present purposes, for me to seek to analyse and apply these competing authorities. This is because, on no view, can it be considered that s 43(2B) of the AAT Act imposed on the Tribunal an obligation to explain why it disagreed with the opinions of two medical experts as to the meaning and application of a provision of the GAD SoP.

51    Two of the doctors who gave evidence to the Tribunal were permitted to express their opinions that the viewing of body bags fell within the meaning of a category 1B stressor because it constituted a severe traumatic event of “viewing corpses … as an eye witness.”

52    Both the doctors who expressed this opinion were called to give evidence by Mr Simos. Another specialist, called by the respondent, felt unable to express a similar opinion.

53    The medical witnesses were qualified to express an opinion as to the psychiatric effect on Mr Simos of his viewing body bags. Their expertise did not extend to a determination of whether or not Mr Simos’ observation and the impact of that observation on him constituted a category 1B stressor within the meaning of the SoP. That was a matter ultimately for the Tribunal to determine. It did so. While there may be an issue as to whether or not it gave adequate reasons for its negative determination on this point, it was under no obligation to explain why it disagreed with the opinion of the two medical witnesses. In any event, as I have already held, the construction, placed on the definition of a category 1B stressor by the Tribunal was, as a matter of law, correct.

54    This ground must be rejected.

Misapplication of the definition of “a clinically significant psychiatric condition”

55    This ground arises from what were said to be contradictions appearing in the Tribunal’s reasons. The Tribunal found (at [91]) that Mr Simos suffered from a generalised anxiety disorder and had done so since the time of his service in Vietnam. Despite this the Tribunal had found (at [105]) that his condition did not warrant ongoing management until 1998 when Mr Simos commenced treatment by a clinical psychologist and that, accordingly, he did not have “a clinically significant psychiatric condition”. As a result it found that he failed to establish diagnostic criterion E in the SoP.

56    Mr Simos contended that the definition of a “clinically significant psychiatric condition” did not require a person to have undergone on-going management. The Tribunal had erred by effectively imposing an additional requirement not provided for in the definition.

57    I do not accept that the Tribunal made contradictory findings in paragraphs [91] and [105] of its reasons. The SoP contemplates that a GAD may affect the person suffering from the condition with varying degrees of severity. It does not follow that all persons suffering from such a disorder require ongoing management. It was, therefore, in my opinion, open to the Tribunal to conclude that Mr Simos had suffered from GAD since his service in Vietnam but to also conclude that the condition did not warrant ongoing management until 1998. The Tribunal had found that Mr Simos had attended the same medical practice since 1981. It reviewed the “extensive medical records” on Mr Simos which were maintained by the practice. It detailed, in its reasons, those parts of the records which dealt with the medical conditions which were relevant to Mr Simos’ claims. Nowhere in those records was there reference to the need for ongoing management, either by a general practitioner or a specialist, of a generalised anxiety disorder. In 1998 Mr Simos had complained of a single episode of breathlessness. His general practitioner ordered blood tests, an electrocardiograph and a stress test. The stress test was normal. It was later in 1998 that Mr Simos, of his own initiative, commenced receiving psychological counselling. He was not referred for such counselling by his general practitioner who only became aware that such counselling was occurring in 2007.

58    In order to establish that he had a GAD, it was necessary for Mr Simos to satisfy a series of diagnostic criteria. One of these criteria required that any anxiety, worry or physical symptoms from which he suffered must have caused him “clinically significant distress or impairment” in various areas of his functioning. A “clinically significant psychiatric condition” is defined, in the SoP, to mean a mental health disorder “which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.” The word “warrant” is used in the sense of “justify”. Guidance is provided as to the temporal aspects of the treatment regime which would meet the description of “ongoing management”. Monthly visits would satisfy the criterion. Far from establishing a regular pattern of treatment, Mr Simos’ medical records failed to disclose any relevant psychiatric treatment prior to 1998. There simply was no ongoing management of his GAD. Thereafter there does not appear to be any evidence about the regularity with which he saw a psychologist for counselling. When read as a whole, the Tribunal’s conclusionary statement at [105] of its reasons can be understood as being based on the absence of any ongoing management of the disorder between 1981 and 1998. The Tribunal did not impose a super-added requirement on Mr Simos.

59    Furthermore, and in any event, the Tribunal returned to this issue when undertaking step 4 of the Deledio process. It confirmed that which had earlier been implicit in its reasons when it recorded that Mr Simos’ medical records revealed that he had only complained to his general practitioner about stress on one occasion. That was in 2000 and the stress had arisen from problems at work. His initial complaint of shortness of breath had been made in 1998. It was found that this complaint was not stress induced. When he first saw Dr Collier in 2002 Mr Simos denied having any dreams or flashbacks relating to his war service and said that the only stressful incident which he had experienced was seeing the body bags at Saigon Airport: see at [129]-[131]. These findings contributed to the Tribunal’s satisfaction beyond reasonable doubt that there were no sufficient grounds for determining that Mr Simos’ diseases were war caused.

60    This ground has not been made out.

DISPOSITION

61    The appeal should be allowed on the ground that the Tribunal proceeded on the mistaken basis that Mr Simos had conceded that there was no objective foundation for his claim to have experienced a life-threatening event. The Tribunal member should reconsider her decision in the light of the evidence which was before the Tribunal at the original hearing and any additional submissions that the parties may wish to advance in relation to the issue.

Associate:

Dated:    20 April 2013