FEDERAL COURT OF AUSTRALIA

O’Dowd v Repatriation Commission [2013] FCA 991

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

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

REASONS FOR JUDGMENT

Introduction

1    Mr O’Dowd appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal decided that Mr O’Dowd did not suffer from post traumatic stress disorder (“PTSD”). It also decided that if it was wrong in so deciding, such PTSD was not war-caused.

2    The Amended Notice of Appeal filed on behalf of Mr O’Dowd only addresses the first question which the Tribunal answered. It does not deal with the second question the subject of the Tribunal’s decision, which was referred to by the Tribunal at [85] of its reasons for decision in the following terms:

Assuming I am incorrect about the diagnosis of a mental disorder, I have nevertheless examined Mr O’Dowd’s claim regarding PTSD in order to determine whether there exists a causal connection between his operational service and that disorder. I have found that there is no causal connection because I cannot accept the raised facts due to the unreliability of the evidence which Mr O’Dowd claimed to support them. I am satisfied beyond reasonable doubt that the factual foundation of the hypothesis linking Mr O’Dowd’s claimed PTSD with his operational service has been disproved.

3    The underlying reasoning supporting that conclusion is contained in the Tribunal’s decision at [68] to [83] under the heading, “Was Mr O’Dowd’s PTSD war-caused”.

4    Notwithstanding the obvious difficulties for Mr O’Dowd which flow from the Tribunal’s reasoning on the second aspect of its decision, the current appeal focuses entirely on the first issue. As it was the subject of argument, the Court will deal with it. However, in the event that the Court is wrong in its conclusion that no error is disclosed in the Tribunal’s reasoning on the first question, the appeal should nevertheless be dismissed, as its conclusion on the second question was not challenged.

Background

5    The veteran, Mr O’Dowd, enlisted in the Royal Australian Navy on 16 March 1963. He had operational service in Vietnam between 20 March 1969 and 13 October 1969 on board the HMAS Brisbane.

6    On 22 October 2009, Mr O’Dowd lodged a disability pension claim with the Department of Veterans’ Affairs. On 10 June 2010, a delegate of the Repatriation Commission informed Mr O’Dowd that the Commission had accepted his claims for hearing loss, tinnitus and solar keratosis but decided that his claimed PTSD, rosacea and asthma were not related to his war service. Mr O’Dowd was granted a disability pension at 40 per cent of the general rate with effect from 22 July 2009.

7    On 17 June 2010, Mr O’Dowd lodged an application for review with the Veterans’ Review Board. On 18 February 2011, the Board consented to the withdrawal of Mr O’Dowd’s application for review regarding his asthma but affirmed the Repatriation Commission’s decision regarding his claim for PTSD and rosacea. The Board determined to increase his disability pension from 40 per cent to 50 per cent of the General Rate with effect from 25 November 2010.

8    In March 2011, Mr O’Dowd lodged with the Tribunal an application for review of the decision of the Veterans’ Review Board. On 14 February 2012, the Repatriation Commission accepted, in its statement of facts and contentions, that Mr O’Dowd’s rosacea was war-caused, with effect from 22 July 2009. Therefore, the only remaining questions for the Tribunal were (a) whether Mr O’Dowd had PTSD and (b) if so, whether that condition was war-caused. On 13 November 2012, the Tribunal affirmed the decision of the Veterans’ Review Board made on 18 February 2011 regarding PTSD. Mr O’Dowd appealed the Tribunal’s decision to this Court on 11 December 2012.

The stressors

9    Mr O’Dowd relied on the occurrence of two events in 1969 which he alleged to be extreme traumatic stressors which led to him suffering PTSD. The first stressor, in chronological order, occurred in May 1969. At that time, Mr O’Dowd claimed to have visited a hospital at Subic Bay in the Philippines whilst on recreation leave. Together with other servicemen, Mr O’Dowd visited the children’s ward of the hospital. There, he saw a young girl in a wheelchair with both legs amputated below the knees and her legs wrapped in bandages.

10    Dr Kaplan, a psychiatrist called on behalf of Mr O’Dowd, described Mr O’Dowd’s response to seeing that girl in the following way, as recorded by the Tribunal at [24] of its reasons for decision:

He stated that he experienced a sense of helplessness and horror. He commented, “I put two and two together and realised that this is the sort of carnage we’re doing there…some bloody awful things.” He stated that many of the children were seriously wounded and he commented, “I think the children were the biggest upset on me.”

11    The second alleged stressor, in chronological order, occurred in June 1969. At the time, Mr O’Dowd was the weapons fire control leading hand on board HMAS Brisbane. His role was to oversee the firing of two guns with a range of between 35 to 40 kilometres. The coordinates for a prospective target would be supplied by a US spotter pilot operating from a small aircraft. Mr O’Dowd would then enter these coordinates into the computer system of the vessel and read them back to the ship’s gunnery officer. Once the target had been confirmed, Mr O’Dowd would activate the process leading to the firing on the target. Mr O’Dowd had regular dealings with six American spotter pilots and knew them quite well.

12    One day in June 1969, he received target coordinates from a pilot which, as it transpired, reflected that pilot’s then position. The firing occurred and Mr O’Dowd realised that the pilot had sought to be fired on deliberately. When he learnt what had occurred, Mr O’Dowd vomited in the control room. His guilt was aggravated when fellow service personnel referred to him jokingly as “killer”.

The Tribunal’s finding on PTSD

13    The Tribunal found that Mr O’Dowd does not have PTSD. In so doing, it rejected evidence from psychiatrists which supported such a diagnosis. It noted at [10] of its reasons for decision that it was required to decide the question of diagnosis to its reasonable satisfaction, on the balance of probabilities.

14    The Tribunal examined the criteria in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th edition (“DSM-IV”) in considering whether Mr O’Dowd had PTSD. It referred to Criterion A(1), which Dr Kaplan considered Mr O’Dowd satisfied. Criterion A(1) applies where a 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”. The Tribunal observed that Dr Kaplan found that this criterion was satisfied because Mr O’Dowd was confronted with the belief that he had been responsible for the death of the spotter pilot. It also referred to Dr Kaplan’s observation that Mr O’Dowd experienced a sense of horror when witnessing injuries suffered by children during the war.

15    Critically, the Tribunal said, at [38](a) of its reasons, that:

…neither of the two events described by Mr O’Dowd to Dr Kaplan can be correctly described as an extreme traumatic stressor. Assuming that the story regarding the downed spotter pilot was correct, Mr O’Dowd did not witness that event nor did he experience it. He heard about it sometime after the event was said to have occurred. Although he claimed that he recognised the spotter pilot’s voice because he had spoken with him on a number of occasions, there is no suggestion that he was a close associate.

16    The Tribunal approached the visit to the hospital at Subic Bay in a similar way. It acknowledged that Criterion A(1) in DSM-IV refers to being “confronted with” an event and noted that the introductory paragraph dealing with PTSD in DSM-IV does not refer to being confronted with an event. The Tribunal also acknowledged that the Court in Woodward v Repatriation Commission (2003) 131 FCR 473 took a broad view of the words “being confronted with” but observed that that case was concerned with the interpretation of legislation and a Statement of Principles (“SoP”) and not with the correctness of a medical diagnosis.

17    At [38](b) of its reasons for decision, the Tribunal dealt with Criterion A(2). It requires the person’s response to an event to involve “intense fear, helplessness or horror”. Mr O’Dowd’s feelings of being deeply troubled and disturbed by the spotter pilot incident were not considered to satisfy the nature of the response required to diagnose PTSD. Similarly, the Tribunal did not accept that Mr O’Dowd experienced intense helplessness or horror at Subic Bay.

18    At [38](c) of its reasons for decision, the Tribunal referred to Criterion B which requires the “persistent re-experiencing of the traumatic event”. It observed that Dr Kaplan had found that Mr O’Dowd had experienced intrusive thoughts and had re-experienced his traumatic events in nightmares. The Tribunal considered that the evidence of Mr O’Dowd did not show that he had persistently re-experienced a traumatic event.

19    Criterion C was dealt with by the Tribunal at [38](d) of its reasons for decision. It refers to “a persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness”. Again, the Tribunal considered that Mr O’Dowd’s evidence and that of his wife did not support his claim to satisfy this criterion.

20    Criterion D concerns “persistent symptoms of increased arousal”. The Tribunal was concerned that Mr O’Dowd’s symptoms of anxiety and the like did not relate to the alleged traumatic events on the evidence before it.

21    The Tribunal accepted that Criterion E was fulfilled because the duration of the alleged condition exceeded one month.

The “confronted with” issue

22    The first two questions of law in the appeal raise the issue, with respect to both alleged stressors, whether the Tribunal failed to take into account a relevant consideration by relying on the introduction to the diagnostic criteria for PTSD in DSM-IV without considering whether Mr O’Dowd had been confronted with a relevant event in accordance with Criterion A(1).

23    The related Ground of Appeal is Ground 2. It alleges:

The Tribunal erred in finding that the applicant was not 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, within the meaning of Criterion A(1) of the definition of PTSD in DSM-IV.

24    Counsel for Mr O’Dowd takes issue with the Tribunal’s opinion that the judgment in Woodward is not relevant to the question of the correct diagnosis of Mr O’Dowd’s alleged mental condition. Counsel submits that although Woodward examined a SoP, it did so in circumstances where the SoP at clause 8 mirrored the DSM-IV diagnostic criteria for PTSD.

25    In Woodward at [123], the Full Court said:

…as a matter of ordinary usage to be “confronted” with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he “confronts”. This is no less the case when the confronting event is one involving death or serious injury.

26    Counsel for Mr O’Dowd submits that by failing to consider whether Mr O’Dowd had been “confronted” with a relevant incident for the purpose of Criterion A(1), the Tribunal erred. Counsel contends that Mr O’Dowd should have been found to have been confronted with the spotter pilot’s death upon hearing that it occurred. Similarly, so the argument ran, the Tribunal erred by failing to consider whether Mr O’Dowd was confronted with the effects of the Vietnam War on children he saw in hospital at Subic Bay.

27    Counsel for the respondent submits that the contentions of counsel for Mr O’Dowd referred to above are based on a misunderstanding of the nature of DSM-IV and its permissible use in diagnosing a condition. Counsel submits that DSM-IV contains guidelines only and is not to be interpreted like a statute. Counsel refers to Repatriation Commission v Warren (2007) 95 ALD 606 at [13], where Kiefel J quoted from the introduction to DSM-IV as follows:

The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion.

At [28], her Honour said:

The threshold question in each case will be whether the diagnosis was one properly made, having regard to DSM-IV. Because clinical judgment is involved, differences of opinion may arise. They will need to be resolved by the Tribunal on the materials before it.

28    The Tribunal was mindful of the approach in Warren and discussed the guideline nature of DSM-IV at [18] of its reasons for decision. However, the respondent’s counsel submits that even if DSM-IV required a strict construction, the Tribunal did not err. In so doing, counsel refers to a judgment of the Court of Appeal of the Supreme Court of New South Wales in New South Wales v Seedsman (2000) 217 ALR 583. In Seedsman, at [112] and [124], Spigelman CJ referred to the need for a person to experience an event causing injury or death, unless the event involves a family member or close associate. Counsel submits that the Tribunal’s discussion of Mr O’Dowd’s alleged stressors at 38[a] is consistent with the observations of Spigelman CJ in Seedsman.

Conclusion on “confronted with”

29    The Court accepts the respondent’s contention that the Tribunal did not err in its application of DSM-IV to Mr O’Dowd in the context of the two stressors alleged to have affected him by reason of being confronted with them. The Tribunal was entitled to read the words “confronted with” in Criterion A(1) in the context of the introductory paragraph to DSM-IV. So much is consistent with Seedsman. That case involved an analysis of DSM-IV, whereas the case of Woodward involved statutory construction. Questions 1 and 2 of the questions of law in the Amended Notice of Appeal should be answered in the negative and Ground 2 should be rejected.

Wrong question – Subic Bay

30    Questions 3 and 4 of the questions of law raised by the Amended Notice of Appeal ask whether the Tribunal identified a wrong issue or asked itself the wrong question in assessing whether Mr O’Dowd experienced:

    Helplessness in response to the Subic Bay hospital event

    Horror in response to the Subic Bay hospital event

31    These questions relate to Ground 3 of the Amended Notice of Appeal which contends that the Tribunal erred in finding that Mr O’Dowd’s response to the Subic Bay event did not invoke “intense fear, helplessness or horror” within the meaning of Criterion A(2) of the definition of PTSD in DSM-IV.

32    Whether Mr O’Dowd felt helpless in response to the Subic Bay hospital event was a question of fact for the Tribunal to determine. It did so at [48] of its reasons for decision where it found that Mr O’Dowd “did not feel helpless because his actions clearly indicate he thought he could help”. The Tribunal earlier observed that Mr O’Dowd and fellow sailors went to purchase books to read to the children. Such a finding was open to the Tribunal on the evidence before it.

33    Also at [48], the Tribunal rejected the suggestion that Mr O’Dowd experienced horror at the hospital in Subic Bay. The Tribunal preferred the evidence of another psychiatrist, Dr Seabridge, that the response of Mr O’Dowd was one of being “overwhelmed, dissociating and unable to move” as distinct from one of horror. That finding of fact was available to the Tribunal.

34    Ground 3 of the appeal is therefore rejected. The Tribunal did not err in finding that Mr O’Dowd’s response to the Subic Bay hospital visit incident did not involve “intense fear, helplessness or horror”. Counsel for the applicant refers to Guy v Repatriation Commission [2005] FCA 562 at [20] where the Court held that the correct approach for a Tribunal to take in considering the response of a veteran to a relevant event is to ask whether the event “might, or could possibly, evoke the relevant emotions”. There was nothing in the Tribunal’s decision which conflicted with the judgment in Guy. It is inherent in the reasons of the Tribunal that it considered the Subic Bay hospital event to be incapable of evoking the relevant emotions in Mr O’Dowd.

Question of law no 5

35    The fifth question of law raised in the Amended Notice of Appeal is:

Was the Tribunal bound to consider and determine whether the Veteran suffered from the psychiatric symptoms of which he complained and whether those symptoms constituted a disease within the meaning of s 5D of the Veterans’ Entitlements Act 1986?

36    Attached to this question of law are Grounds 1 and 5 of the grounds of appeal. They contend that the Tribunal erred in finding that Mr O’Dowd did not suffer from PTSD and that it failed to decide whether his symptoms amounted to an alternative diagnosable disease which caused incapacity.

37    The submissions made in support of those grounds, in essence, challenge the Tribunal’s diagnosis as conflicting with that of the medical experts. In contrast, the respondent contends, and the Court agrees, that the Tribunal’s only obligation is to determine whether the veteran suffers from a diagnosable disease. So much is clear from the judgment of the Full Court in Repatriation Commission v Bawden (2012) 206 FCR 296 at [47]. There, the Full Court referred to Repatriation Commission v Budworth (2001) 116 FCR 200 at [19] and explained that aspect of Budworth in the following way:

In our respectful opinion, this passage means that the decision-maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if it is so satisfied, it must then consider whether the illness or disease is war-caused. The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. It may be that, as Dr White suggested in his evidence before the Tribunal, there are PTSD-like diseases not falling within the DSM-IV description, such as, for example, an adjustment disorder or a depressive disorder. The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.

38    The Tribunal considered the possible alternative diagnosis of agoraphobia but rejected it on the material before it. I agree with counsel for the respondent that a fair reading of Tribunal’s reasons show that it discharged its obligation to consider alternative diagnoses raised on the evidence before it.

39    The Tribunal determined that Mr O’Dowd’s PTSD (if diagnosed) was not war-caused. It did not go on to consider the consequences of it being wrong in respect of other possible illnesses. Perhaps this resulted from the Tribunal’s greater confidence that Mr O’Dowd did not suffer from any other possible illnesses. Counsel for Mr O’Dowd contended that if the Court accepted question of law no 5, in the way submitted by her, the appeal would not be moot notwithstanding that the “war-caused” aspect of the Tribunal’s reasons was not challenged. This submission is rejected. It was not necessary for the Tribunal to consider whether any alternative illness on the material before it was war-caused, given its rejection of the existence of any such illness. The fact that it dealt with whether the claimed PTSD illness was war-caused has implications for the utility of sending back to the Tribunal any question associated with such illness. However, as the Court finds no error of law in the approach of the Tribunal as alleged in any of the questions of law and grounds relied on, it is unnecessary to say anything further about this topic.

Procedural fairness

40    Question of law no 6 in the Amended Notice of Appeal asks whether the Tribunal denied Mr O’Dowd procedural fairness by finding that his symptoms, as found by it, could be explained by his skin condition of rosacea without putting that allegation to him in the course of the hearing. Ground 6 is in similar terms.

41    This issue is based on a false premise. The Tribunal did not find that Mr O’Dowd’s symptoms could be explained by his rosacea. Rather, it said his avoidance of crowds may be so explained. The comment that most of Mr O’Dowd’s symptoms can be explained by his rosacea was in the context discussing his claimed agoraphobia. The comment is made at the commencement of [55] of the Tribunal’s reasons, after a discussion at [54] about whether Mr O’Dowd suffered from agoraphobia. Both paragraphs were written under the heading “Diagnosis of Agoraphobia”.

42    Mr O’Dowd’s rosacea was only used by the Tribunal to negate the symptoms of his alleged agoraphobia and not his alleged PTSD. In any event, the Tribunal was under no obligation to put to Mr O’Dowd or his counsel its impressions in relation to the effect of his rosacea, as this should have been taken to be inherently in issue; see Hoskins v Repatriation Commission (1991) 32 FCR 443. No denial of procedural fairness occurred.

Conclusion

43    No question of law or ground of appeal raised by Mr O’Dowd reveals any error in the approach of the Tribunal to the resolution of the first issue before it, concerning whether Mr O’Dowd suffers from PTSD. The appeal does not grapple with the second question as to whether, in any event, the PTSD (if diagnosed) was war-caused. The appeal must be dismissed with costs.

Associate:

Dated:    1 October 2013