Lees v Repatriation Commission [2002] FCAFC 398 (6 December 2002)

Last Updated: 6 December 2002

FEDERAL COURT OF AUSTRALIA

Lees v Repatriation Commission [2002] FCAFC 398

VETERANS' AFFAIRS - whether disease caused by operational service - meaning of clinical onset of disease in Statement of Principles - timeframe between operational service and clinical onset - where condition is generalised anxiety disorder - whether evidence of doctor of what he was told by patient is probative of facts recounted by patient - whether the Administrative Appeals Tribunal has an obligation under s 120 of the Veterans' Entitlement Act 1986 (Cth) to consider doctor's evidence about what he was told.

WORDS & PHRASES - "clinical onset"

Veterans Entitlements Act 1986 (Cth), s 120

Administrative Appeals Tribunal Act 1976 (Cth), s 33(1)

Repatriation Commission v Cornelius [2002] FCA 750 discussed

Repatriation Commission v Gosewinckel [1999] FCA 1273, (1999) 59 ALD 690 discussed

Bull v Repatriation Commission [2001] FCA 1832, (2001) 66 ALD 271 referred to

ALLAN LEES v REPATRIATION COMMISSION

S 82 of 2002

HEEREY, MOORE & KIEFEL JJ

6 DECEMBER 2002

SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 82 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ALLAN LEES APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	HEEREY, MOORE & KIEFEL
DATE OF ORDER:	6 DECEMBER 2002
WHERE MADE:	SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal, differently constituted.

3. The respondent pay the appellant's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 82 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ALLAN LEES APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	HEEREY, MOORE & KIEFEL
DATE:	6 DECEMBER 2002
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal by Mr Allan John Lees ("the appellant") from a decision of the Administrative Appeals Tribunal ("the Tribunal") of 15 February 2002. The appeal is under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") on a question of law and involves the exercise of this Court's original jurisdiction though, in this instance, that jurisdiction is exercised by a Full Court: see s 44(3). The decision of the Tribunal affirmed two decisions of the Repatriation Commission ("the Commission"), one dated 15 April 1999 ("the April decision") and the other 13 December 1999 ("the December decision"). Both were decisions effectively rejecting claims by the appellant for benefits under the Veterans Entitlements Act 1986 (Cth) ("the Act").

THE BACKGROUND

2 The Tribunal made a number of detailed findings about the circumstances of the appellant. They may be briefly summarised, for present purposes, in the following way. The appellant was born on 26 October 1952. He enlisted in the Royal Australian Navy in 1968 when he was 15 years old. In the years 1969 to 1971 he served on two ships, HMAS Sydney and HMAS Duchess, including several periods of operational service in Vietnam. The Tribunal accepted there was material before it which pointed to the appellant experiencing a severe psychosocial stressor in those periods of operational service.

3 The appellant now suffers from a generalised anxiety disorder, gastro-oesophageal disease and alcohol abuse. The appellant's claim for benefits under the Act were based on a contention that these diseases or conditions were war caused and arose from operational service. It will be necessary, in due course, to explain with more precision the nature of the alleged connection.

THE TRIBUNAL'S REASONS

4 In its reasons, the Tribunal discussed in considerable detail the evidence before it about, in particular, the appellant's operational service in Vietnam. Evidence was given by the appellant, Dr Carroll who had served as a naval officer in Vietnam in 1967, 1968 and 1972 and is a psychologist, Dr Martin Ewer who is a consultant psychiatrist and Mr Robert Piper who is an historical research officer and historian. In substance the Tribunal accepted evidence to the effect that the appellant had experienced several extremely stressful incidents at this time. They involved the deploying of explosive charges (which were detonated) into the water from the ship on which the appellant was serving, helicopters engaging in gunfire within sight of the ship, learning of his brother having suffered serious injuries in Vietnam and an incident in which the ship's boiler vibrated or shook violently (though the Tribunal was unable to find that this occurred during operational service). The Tribunal also appeared to accept that the appellant commenced drinking alcohol during the period in which he rendered operational service in Vietnam.

5 The Tribunal then addressed the relationship between its findings on these matters and various Statements of Principles that may have been applicable to the appellant's circumstances. The first such Statement was No. 1 of 2000 ("SoP1") which concerned anxiety disorder and which repealed Statement of Principles No. 48 of 1994 (as amended by Statement of Principles No. 275 of 1995) ("SoP48"). It also addressed Statement of Principles No. 76 of 1998 ("SoP76") which concerned alcohol dependence or alcohol abuse and Statement of Principles No. 62 of 1999 ("SoP62") which concerned gastro-oesophageal reflux disease.

6 In relation to the appellant's generalised anxiety disorder, the Tribunal appeared to be satisfied, for the purposes of SoP1, that the appellant experienced a severe psychosocial stressor while on operational service. The Tribunal then asked itself the question whether there was material pointing to the clinical onset of the appellant's generalised anxiety disorder within two years immediately after he experienced the severe psychosocial stressors. This had to be established, in the Tribunal's opinion, to enliven SoP1. That was because cl 5(a)(ii) of SoP1 provided:

(the veteran must have experienced) a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder.

7 In undertaking this task the Tribunal had to have regard to the definition of "generalised anxiety disorder" in cl 8 of SoP1. That definition read:

"generalised anxiety disorder" means a psychiatric disorder with the following features:

A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and

B. The person finds it difficult to control the worry; and

C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six months:

(1) restlessness or feeling keyed up or on the edge

(2) being easily fatigued

(3) difficulty concentrating or mind going blank

(4) direct ability

(5) muscle tension

(6) difficulty falling or staying asleep, or restless unsatisfying sleep

D. .......

8 The Tribunal concluded there was no material pointing to the clinical onset of the appellant's generalised anxiety disorder within the two years. Accordingly, in the Tribunal's opinion, the hypothesis that the appellant suffered one or more severe psychosocial stressors and suffered the onset of his generalised anxiety disorder within two years of experiencing one or more of those stressors, was not a reasonable one.

9 The contentious conclusions of the Tribunal on these questions are found in the following paragraphs of its reasons:

"92. That brings us to consider whether there is material pointing to the clinical onset of Mr Lees' generalised anxiety disorder within two years immediately after he experienced the severe psychosocial stressors as required by clause 5(a)(ii) of SoP 1. The particular anxiety state upon which the hypothesis is based is generalised anxiety disorder. The effect of the definition of a `generalised anxiety disorder' is that Mr Lees must have shown the symptoms described in that definition within two years of experiencing either the firing from the helicopters or the scare charges. There is material in the form of Dr Ewer's evidence pointing to Mr Lees' suffering from a high level of anxiety, experiencing tension headaches and was troubled by insomnia and poor concentration. That material, however, only points to his suffering from them in the months immediately preceding Mr Lees' discovering that his hepatitis was not hepatitis A as he had previously thought but hepatitis B. Mr Lees' evidence provides material pointing to his suffering from excessive anxiety and worry about the scare charges and the firing from the helicopters at the time of their occurrence. In the case of the scare charges, his evidence provides material pointing to his suffering excessive anxiety and worry every time a scare charge was exploded. Whether his evidence extends to providing material pointing to his suffering that anxiety and worry on more days than not for a continuous period of at least six months is questionable.

93. Whether it does so or not, his evidence does not extend to his suffering from the other features of a generalised anxiety disorder referred to in the definition of that expression in clause 8 of SoP 1 during any six month period in the two years following the scare charges or the firing from the helicopters. The features are cumulative and so the material must point to his suffering from all of them in the two years after his experiencing the severe psychosocial stressors before it can be said that there is material pointing to the clinical onset of his generalised anxiety disorder in the relevant period. Mr Lees' evidence focused on his drinking to make him feel better in that period but, in particular, does not focus on his suffering from three or more of the six symptoms listed in paragraph C of the definition in clause 8 i.e. restlessness or feeling keyed up or on edge, being easily fatigued, difficulty concentrating or mind going blank, irritability, muscle tension, difficulty falling or staying asleep or restless unsatisfying sleep (see paragraph 77 above). There is material pointing to Mr Lees' suffering from impairment in social areas of functioning as described in paragraph E during that time and it takes the form of his evidence that he generally avoided people socially and chose to drink alone.

94. As we are of the view that there is no material pointing to the clinical onset of Mr Lees generalised anxiety disorder within two years of the stressors we have identified (including the boiler room incident), we are of the view that the hypothesis advanced by Mr Lees is not consistent with SoP1. It is not, therefore, a reasonable hypothesis "

(Emphasis added)

10 The Tribunal also posed essentially the same questions by reference to SoP48 and reached the same conclusion.

11 The Tribunal then considered SoP76. Ultimately, again, the Tribunal rejected any relevant connection between the appellant's war service and alcohol abuse because there was no material pointing to the clinical onset of the appellant's alcohol abuse within two years of the stressful events discussed earlier. This conclusion appears to have founded a further conclusion in relation to SoP62, namely that there was no relevant connection between the appellant's operational service and his gastro-oesophageal reflux.

ISSUES IN THE APPEAL

12 It is convenient, at this stage, to set out the grounds on which it is alleged the Tribunal erred in law before turning to the relevant legislative provisions and applicable principles and the terms, so far as is relevant, of the applicable Statements of Principles. In his notice of appeal, the appellant raised the following grounds:

5. The [Tribunal] erred in failing to correctly interpret [SoP1], [SoP76] and [SoP62] in that the term "clinical onset" used in each of the relevant Statements of Principles does not mean "must have shown the symptoms" ([92] of the Tribunal's reasons) or "suffer from" ([93] of the Tribunal's reasons), but rather means "commenced the process by which the clinical diagnosis subsequently occurred".

6. [The Tribunal] erred in failing to consider clause 5(a) of [SoP 76]. If it had done so it should have found that the time of the clinical onset of alcohol dependence/abuse the applicant was suffering from a psychiatric disorder.

7. The [Tribunal] erred in failing to find that there was evidence pointing to the clinical onset of the [appellant's] alcohol abuse within two years of relevant stressors.

8. The [Tribunal] erred in failing to have regard to the report dated 15th December 200 [sic] from Dr Ewer, which stated that the [g]eneralised [a]nxiety [d]isorder and the onset of this condition was within two years of the server [sic] psychological stressors.

We now turn to consider the issues raised in the appeal.

CONSIDERATION OF THE ISSUES

13 The first ground raises for consideration the meaning of the expression "clinical onset" in SoP1. It is an expression whose meaning has been considered by the Tribunal on several occasions including in Re Robertson & Repatriation Commission (1998) 50 ALD 668 and Re Witten & Repatriation Commission (1998) 54 ALD 605. It was also considered by Branson J in Repatriation Commission v Cornelius [2002] FCA 750. In that matter a veteran had engaged in repetitive work maintaining small arms and subsequently developed carpal tunnel syndrome. The relevant Statement of Principles provided that the clinical onset of the carpal tunnel syndrome had to be no more than 30 days after the repetitive work ceased. Her Honour said at [26]:

Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression "clinical onset" as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that

:

"... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...."

By inference the Tribunal rejected the view of "clinical onset" taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression "clinical onset" in clause 5(a) of the SoP. For present purposes, therefore, Professor Sambrook's opinion that "[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993" (see [8] above) may be disregarded.

The opinion her Honour was referring to in the first sentence concerned whether the Tribunal was satisfied the material before it pointed to the relevant repetitive activities not having ceased more than thirty days before the clinical onset of the respondent's carpal tunnel syndrome.

14 The meaning of "clinical onset" was also referred to by Weinberg J in Repatriation Commission v Gosewinckel [1999] FCA 1273, (1999) 59 ALD 690 in the context of SoP48 and generalised anxiety disorder. His Honour said at [64] and [67]-[68]:

The SoP requires the presence of a number of distinct symptoms, of which "clinically significant distress" and "restlessness or feeling keyed up or on edge" are only part. Unless the symptoms referred to in cl 4(a)(i), at least three of (a)(ii)(A) to (F), and (a)(v) are all present, and the case does not fit within (a)(iii) and (iv), (b) and (c), it cannot be said, consistently with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.

The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of "purely medical ... issues" out of the hands of bodies such as the AAT - Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable - see Deledio v Repatriation Commission (supra) at 411-2. An hypothesis that fails to fit within the template will be deemed not to be "reasonable", and the claim will fail.

The hypothesis which the AAT found to be reasonable, namely, that the veteran experienced the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event (ie within two years of the conclusion of the war) was not upheld by the relevant SoP. The AAT could not, therefore, have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran's generalised anxiety disorder was not war-caused.

15 Counsel for the appellant submitted that in relation to a disease of gradual onset, which might include generalised anxiety disorder, one should approach the question of clinical onset within the two year period on the footing that it would be sufficient if only one of the prescribed symptoms may have manifested itself. It was submitted that this aspect of the applicable Statement of Principles was not directed to diagnosis but only causation.

16 However this approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme. In relation to SoP1, the definition of "generalised anxiety disorder" does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest. The exception to this statement is par C which provides that only three of the six specified symptoms are necessary for the disease to exist, though in the frequency and for the period identified. The purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder. While it is true that Statements of Principles are directed to causation, the means of establishing the necessary link in SoP1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within two years of the veteran experiencing a severe psychosocial stressor (relevantly, during operational service). This is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis. In our view, the Tribunal did not err in its approach to the meaning of the expression "clinical onset".

17 The second issue raised by the appellant concerned the approach of the Tribunal to the evidence. In a passage set out earlier (at [9] above) the Tribunal said there was no material pointing to the clinical onset of the appellant's generalised anxiety disorder within two years of stressors. In the two preceding paragraphs the Tribunal refers to the evidence of the appellant and also the evidence of Dr Ewers. It is not suggested by counsel for the appellant that the appellant himself gave evidence before the Tribunal about when the symptoms (or features) of his generalised anxiety disorder were first manifest. However counsel for the appellant points to evidence of Dr Ewers which does address this factual question. The evidence is found in both the oral evidence of Dr Ewers and in a report dated 15 December 2000.

18 When giving evidence before the Tribunal, Dr Ewers was asked a series of questions by the presiding Deputy President. The questions concerned the symptoms the appellant had experienced and also what the appellant had said about when he first experienced them. The following exchange is of particular relevance:

Symptoms in the past?-- Yes, let's see. This goes back to my original notes. Yes, in terms of symptoms in the past, once again mentioned the alcohol abuse but as I understood it, that occurred on the Sydney but he was having difficulty coping, that he often felt stressed particularly in the workplace, that he was in conflict with people possibly due to irritability, that he was abusing alcohol over the years. Yes, so there's a number of symptoms in keeping with anxiety and alcohol abuse, that's right.

When did those symptoms start?-- Soon after-well, either in Vietnam or soon after he returned.

He specifically said that to you?--- Yes.

19 In his report of 15 December 2000, Dr Ewers said:

I asked Mr. Lees to tell me in more detail of the emotions he experienced during the above traumas. Mr. Lees gives a clear history of the above events evoking intense feelings of anxiety and stress. Mr. Lees told me that he was troubled by anxiety in the months that followed the stresses that I have described. He was also troubled by insomnia. Upon more specific enquiry he said "I was fairly keyed up most of the time. I used to worry a lot". Mr. Lees told me that he increased his alcohol consumption considerably to try and control these symptoms. He particularly recalls abusing alcohol in 1970, bearing in mind that he went to Vietnam in December of 1969. You will note, in my report dated 25^th March 1999, that Mr. Lees experienced anxiety and tried to cope by abusing alcohol upon returning from Vietnam. I also stated that he was "more emotional".

Re: Allan LEES

Mr. Lees also told me that he was troubled by headaches during 1970.

Mr. Lees' wife recalls that her husband was anxious and "worrying all the time" in 1972. This was when she met him. She remembers "he was always drunk".

DIAGNOSIS

I am still of the opinion that Mr. Lees suffers from a Generalized Anxiety Disorder and Alcohol Abuse.

Upon carefully reviewing the chronology of events, it would seem that Mr. Lees' Anxiety Disorder started to emerge in 1970. It certainly preceded the development of his Alcohol Abuse which emerged in 1970 but after he developed an Anxiety Disorder.

20 It can be seen from this evidence that a finding might be made that the appellant had told Dr Ewers that he had felt keyed up, had difficulty falling asleep and had been irrritable within a period of two years from experiencing the psychosocial stressors. These are three of the symptoms listed in par C of the definition of "generalised anxiety disorder".

21 Counsel for the appellant submitted that even in proceedings in which the laws of evidence apply, evidence of a doctor of facts recounted to him or her by the patient and on which the doctor's opinion is based, is probative of those facts. Reference was made to s 60 and s 72 of the Evidence Act 1995 (Cth) and Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594, Welsh v R (1996) 90 A Crim R 364 and Lardil & Ors v Queensland [2000] FCA 1548. The Tribunal is not bound by the rules of evidence: see s 33(1) of the Administrative Appeals Tribunal Act 1976 (Cth) and is obliged, by s 120(3) of the Act to consider all material before it in determining whether a reasonable hypothesis is raised.

22 Counsel for the appellant submitted that the Tribunal failed to consider the evidence of Dr Ewers (both oral and in his report) concerning what he had been told by the appellant about when the symptoms were first manifest. We accept that in the context of proceedings in the Tribunal, the evidence of Dr Ewers concerning what he was told by the appellant about the symptoms might be viewed as probative of when they were first manifest. If, on a fair reading of the Tribunal's reasons, it can be inferred that it did not pay regard to this evidence of Dr Ewers, then it may have failed to discharge the obligation imposed by s 120(3). It would not be, however, a failure to take into account relevant considerations as submitted by counsel for the appellant.

23 It is true that in its reasons (in the passage set out at [9] above) the Tribunal said that the evidence of Dr Ewers points to the appellant suffering a high level of anxiety, experiencing tension headaches and being troubled by insomnia and poor concentration but suffering from them only in the months immediately preceding the appellant discovering that he had hepatitis B (in 1997). However, while this may reflect some of the evidence of Dr Ewers, it does not appear to involve a consideration of what was said by Dr Ewers in the evidence set out at [18] - [19] above. In addition the statement of the Tribunal that there was "no material" pointing to the clinical onset of the appellant's generalised anxiety disorder within two years of the stressors, is fairly emphatic.

24 We accept that the reasons of the Tribunal should not be scrutinised with an eye attuned for error. As Emmett and Allsop JJ (Moore J agreeing) said in Bull v Repatriation Commission [2001] FCA 1832, (2001) 66 ALD 271 at [34] concerning how a Court should assess whether the Tribunal has considered all the material before it:

We have examined the factual material referred to by the Tribunal at paras [3] to [21] of its reasons and the submissions of the appellant and we cannot conclude that the statement by the Tribunal in the first sentence of para [35] of its reasons that it had examined all the material before it was not an accurate reflection of what the Tribunal did. This is so especially in the light of the various statements in the cases that it is not incumbent on a Tribunal to cover every aspect of every factual matter: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620, 621 (per Fox J); Bisley Investment Corp v ABT (1982) 40 ALR 233; and FCT v Caneiro (1988) 15 ALD 368, 369; and in the light of the approach not to examine the Tribunal's reasons with an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.

25 However, even approaching the Tribunal's reasons in the present matter with these principles in mind, it is difficult to avoid the conclusion that the Tribunal did not consider the evidence of Dr Ewers about what he was told by the appellant as evidence which might bear upon the question of whether the clinical onset of the appellant's generalised anxiety disorder occurred within two years of the stressors. We should add that this is not surprising given that no submission was apparently made by the legal representatives of the appellant to the Tribunal that Dr Ewers could be used for this purpose. Nonetheless that evidence did form part of the material that the Tribunal was obliged by s 120 to consider. In this respect, the Tribunal erred.

26 However, was the error a material one? It is to be recalled that par C of the definition of "generalised anxiety disorder" requires not only that three of the six specified symptoms be associated with anxiety and worry but that some of them be present for more days than not during the previous six months. In context this means in the six months preceding the manifestation of the symptoms within two years, although it is not essential that the condition in fact be diagnosed during that period. Some of the evidence of Dr Ewers concerning what he was told by the appellant might establish the existence of the symptoms within that period but not the frequency with which they were experienced. However Dr Ewers does record in his report that the appellant was keyed up most of the time. This evidence may support a conclusion that at least this symptom was present for the requisite period of time. If so, it might satisfy the definition of "generalised anxiety disorder" insofar as it says "some symptoms (should be) present for more days than not during the previous six months". Accordingly it is not possible to say the error is immaterial.

27 In the result, the decision of the Tribunal should be set aside, the matter remitted to the Tribunal differently constituted and the respondent ordered to pay the appellant's costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey, Moore & Kiefel.

Associate:

Dated: 6 December 2002

Counsel for the Applicant:	Mr S W Tilmouth QC with Mr T White
Solicitor for the Applicant:	Tindall Gask Bentley
Counsel for the Respondent:	Mr P J Hanks QC with Ms S Maharaj
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 November 2002
Date of Judgment:	6 December 2002