Repatriation Commission v Constable [2006] FCAFC 102 (26 June 2006)

Last Updated: 26 June 2006

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Constable [2006] FCAFC 102

VETERANS’ ENTITLEMENTS – Appeals - Statement of Principles – alcohol dependence or alcohol abuse - correct interpretation of the definition ‘experiencing a severe stressor’ - whether respondent’s alcohol abuse or dependence is related to his war service – whether there is a requirement of immediacy into the definition of ‘experiencing a severe stressor’ - whether there is a subjective element in the requirement of ‘experiencing a severe stressor’

Held: the primary judge was correct in ordering the matter be sent back to the AAT for consideration in accordance with the law – the primary judge was correct in concluding that the AAT had impermissibly imposed a requirement of immediacy into the definition of ‘experiencing a severe stressor’ in the Statement of Principles for alcohol dependence and alcohol abuse

Veterans’ Entitlements Act 1986 (Cth), ss 9, 120, 120A
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 considered
Dixon v Repatriation Commission (1999) 29 AAR 235 cited
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 77 ALD 67 cited
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366 cited
Woodward v Repatriation Commission [2004] FCAFC 160; (2003) 75 ALD 420 cited













REPATRIATION COMMISSION v ROBERT PATRICK CONSTABLE

QUD 228 of 2005


SPENDER, WEINBERG and EDMONDS JJ
26 JUNE 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 228 of 2005

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

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	ROBERT PATRICK CONSTABLE Respondent
JUDGES:	SPENDER, WEINBERG and EDMONDS JJ
DATE OF ORDER:	26 JUNE 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 228 of 2005

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

BETWEEN:	REPATRIATION COMMISSION Appellant
AND:	ROBERT PATRICK CONSTABLE Respondent
JUDGES:	SPENDER, WEINBERG and EDMONDS JJ
DATE:	26 JUNE 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision by a single judge of the Federal Court on 8 July 2005, setting aside a decision of the Administrative Appeals Tribunal (‘the AAT’) dated 4 November 2004, remitting the matter to the AAT for further consideration in accordance with law, and ordering the Repatriation Commission to pay Mr Constable’s costs.

2 The decision of the AAT which his Honour set aside was that the respondent’s condition of alcohol abuse or dependence was not a war-caused injury or disease for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).

3 The proceedings at first instance, and this appeal, concern the proper interpretation and application of par 5(b) of Instrument No 76 of 1998, the Statement of Principles (the ‘SoP’) concerning Alcohol Dependence or Alcohol Abuse, and, in particular, the term ‘experiencing a severe stressor’.

4 The primary judge, correctly in our respectful opinion, concluded that the AAT had impermissibly imposed a requirement of immediacy into the definition of ‘experiencing a severe stressor’ in the SoP for alcohol dependence and alcohol abuse.

5 The Repatriation Commission has not appealed this aspect of the primary judge’s conclusions. The error by the AAT is sufficient, in itself, to warrant the appeal to this Court being dismissed, the matter then being remitted to the AAT for a rehearing in accordance with the primary judge’s orders.

6 The concerns by the Repatriation Commission on this appeal are directed to the proper test to be applied in determining whether an event is one which ‘might evoke intense fear, helplessness or horror’, and the related question of whether the SoP requires that the relevant event have an effect or impact on the person. These questions in turn raise the issue of the proper interpretation of the definition of ‘experiencing a severe stressor’ in the SoP.

7 The respondent’s history was outlined by the primary judge in [1]:

‘The [respondent] was born on 1 August 1941 and enlisted in the Australian Regular Army on 4 November 1958. During 1963 and 1964 he served in Papua and New Guinea as a driver/storeman in an engineering unit. He volunteered for service in Vietnam and served with 17 Construction Squadron at Vung Tau and Nui Dat from 23 July 1969 until 23 July 1970. When he was posted to Vietnam he held the rank of temporary corporal and was promoted to that substantive rank on 10 June 1970. Between 15 April 1970 and 15 July 1970 he carried out the duties of a sergeant. He left the Army on 4 November 1979 and worked until December 1983 as a driver with a security company. He lost that job because of a drink-driving offence and then worked as a security officer, as a cleaner and as a groundsman/maintenance worker until he ceased work in 1999.’

8 The respondent’s service in Vietnam was ‘operational service’ for the purposes of the Act. He has a number of disabilities which have been accepted as being related to his war service, including a depressive disorder. He first applied for acceptance of the condition of ‘substance abuse’ on 1 October 1999, amongst claims for the acceptance of other conditions. A report from a Dr Michael Likely, a consultant psychiatrist, dated 19 November 1999 was obtained. On 13 January 2000, while accepting several of the respondent’s claimed conditions, the Repatriation Commission rejected others, including his claim for alcohol dependence.

9 The respondent’s claim for substance abuse/alcohol dependence is based on what was referred to in the AAT’s Reasons as the ‘landrover incident’. The respondent described that incident in a statement dated 18 December 2003:

‘7. On one trip to Nui Dat I recall an incident that occurred as I was approaching a bridge near the vicinity of Baria. A landrover was rapidly approaching the bridge from the opposite direction sounding its horn in what appeared to be an urgent manner. I bought [sic] my vehicle to a halt prior to entering the bridge. As the vehicle passed I could see 3 wounded troops in the vehicle. I recall that I could clearly see the bandages that were wrapped around their body parts (including their heads) were soaked in blood. I felt physically upset as the vehicle passed me. Whilst I had previously seen wounded in hospital (for example when mates required attention at the hospital in Vung Tau), this was different. I felt sick in my stomach.

8. In my dreams I often see this scene repeated, though the vehicle is driving on the wrong side of the road as it passes me. Even today when thoughts of that incident intrude upon my daily life, I feel ill.’

10 The decision of the Repatriation Commission of 13 January 2000, in rejecting the respondent’s claimed condition of ‘panic disorder’, said:

‘Panic disorder is determined in accordance with the RMA Statement of Principles, Instrument number 9/99 and 58/99.

Your Contention

In your claim you have contended that [concerning] panic disorder "I believe that I am suffering from anxiety and stress due to my service in South Vietman [sic] in 69/70". The report from the psychiatrist [Dr Michael Likely] indicated that you had seen wounded soldiers in the backs of landrovers and that you did not recall your response at the time of such incidents to be that of fear, helplessness or horror but rather curiosity regarding the events that had led up to the soldiers being wounded. The report also stated that you were unable to recall any particular events which caused you upset at the time.

None of the relevant factors identified by the RMA apply in your case (copy attached)

The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of panic disorder. As a result I find that all the evidence does not raise a reasonable hypothesis connecting panic disorder and operational service. I am also reasonably satisfied that it was not caused by eligible defence service. I am therefore unable to accept it as war or defence caused.’
(Emphasis added)

11 In rejecting the respondent’s then claim for alcohol dependence or alcohol abuse, the decision of the Repatriation Commission of 13 January 2000 noted:

‘In your claim you have contended that [concerning] alcohol dependence or alcohol abuse "I believe that due to the excessive intake of alcohol during my service in South Vietnam in 1969/70 caused this condition. I drank to relieve the anxiety and stress I suffered and still drink now". The report from the psychiatrist indicated that you were unable to recall any particular events which caused you upset at the time.
...
There is no history of ever having experienced a severe stressor, as defined by the RMA, and required by the Statement of Principles.’
(Emphasis added)

12 On 1 September 2000, the respondent lodged a claim for acceptance of ‘depressive disorder’, as well as for other conditions. A further report from Dr Likely was obtained on 26 October 2000, and, on 24 November 2000, the Repatriation Commission accepted depressive disorder as being service related. His claims for the other conditions were refused. The respondent’s disability pension was increased to 100 per cent of the General Rate, backdated to 1 June 2000.

13 On Christmas Eve 2000, the respondent voluntarily ceased his full-time job as a maintenance groundsman, and on 26 February 2001 he lodged a further application for an increase in disability pension. On 12 April 2001, the Repatriation Commission determined to maintain the disability pension at 100 per cent of the General Rate and refused to increase the respondent’s pension to the Special Rate.

14 A further report from Dr Likely was obtained on 2 August 2001, and on 15 November 2001 the Veterans Review Board (the ‘VRB’) affirmed the Commission’s decision of 12 April 2001. The VRB determined that the respondent was not entitled to a special rate pension, saying, ‘The Board does not accept that these conditions had no part to play in the [respondent’s] decision to cease work’.

15 On 17 February 2003, the respondent lodged an application for an increase in his disability pension to the Special Rate, on the basis of his alcohol abuse.

16 On 27 March 2003, the Repatriation Commission rejected the respondent’s application. The Delegate of the Repatriation Commission noted that ‘depressive disorder’ had been accepted by the Commission on 24 November 2000 as service related, and then stated:

‘• Psychiatric disorder

Although there is a history of having suffered from depressive disorder, this was not present at the time of the clinical onset of alcohol abuse, as required by the Statement of Principles. Therefore this psychiatric disorder did not cause alcohol abuse.

• Other factors

The evidence before me indicates that the other factors contained in the Statement of Principles do not apply in Mr Constable’s case.

The other factors involve:

Experiencing a severe stressor; or inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

I have considered all relevant evidence and am satisfied beyond reasonable doubt that alcohol abuse is not related to Mr Constable’s operational service. ...’

17 On 22 July 2003, the VRB affirmed the decision of the Repatriation Commission of 27 March 2003, holding:

‘Having reviewed the whole of the material before it and for the reasons given above, the Board finds that none of the minimum factors set out in the Statement of Principles is raised by the evidence in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran’s alcohol abuse was war-caused...’

18 On 28 August 2003, the respondent applied to the AAT for a review of the decision of the VRB of 22 July 2003. A further report from Dr Likely was provided on 16 March 2004, and yet a further report from Dr Likely dated 5 August 2004. This latter report was in response to a report from Dr Peter Mulholland, a psychiatrist, for the Department of Veterans Affairs. Dr Mulholland had reported on 20 May 2004 that:

‘From his history the alcohol abuse dates from Vietnam but is not because of any identified severe stressor.

There is no particular incident in Vietnam which meets the criteria of severe stressor as required in respect of alcoholism nor is there any incident or incidents that meet the criteria for severe psychosocial stressors as would be required for anxiety or depression or PTS type disorders.’

19 The further report from Dr Likely dated 5 August 2004 disagrees with the opinion of Dr Mulholland. Dr Likely says:

‘I disagree with Dr Mulholland in this regard in that I believe the sight of wounded soldiers and Mr Constable’s response at the time as being "sick in the stomach" would indeed constitute a severe stressor. When I saw Mr Constable today he certainly gave a history and had signs of mental state examination consistent with a diagnosis of generalised anxiety disorder and major depressive disorder as well as alcohol abuse. Dr Mulholland in his opinion continues "There is no particular incident in Vietnam which meets the criteria of a severe stressor as required in respect of alcoholism nor is there any incidents [sic] that meet the criteria for severe psycho-social stressors as would be required for anxiety, depression or PTS type disorders". I disagree with Dr Mulholland in this regard for the reasons outlined immediately above.’

20 Dr Mulholland’s report of 12 October 2004 commented:

‘...I did take customary pains to establish his reactions to events in Vietnam and I have detailed them in my report as they were described to me.’

21 On 4 November 2004, the AAT affirmed the decision of the VRB of 22 July 2003.

22 The AAT said in [10] of its Reasons concerning the landrover incident:

‘In oral evidence the applicant said that the approaching landrover was blowing its horn to alert oncoming vehicles to pull over so that the landrover could cross a single lane bridge. He said that all approaching vehicles including his pulled over to let the landrover through. The applicant said that the landrover increased its speed once it was seen that the bridge was clear and he estimated it passed him at well over 60 klms per hour. He said that he observed the 3 soldiers, one he recalled sitting upright with bloodied bandages to his head. The applicant estimated that the landrover incident had occurred about Christmas 1969.’

23 It was not, and is not, in dispute that the respondent suffers from alcohol abuse or dependence, nor is it in dispute that the SoP for alcohol abuse or dependence is Instrument No 76 of 1998. The issue in dispute is whether the respondent’s alcohol abuse or dependence is related to his war service, as referred to in s 9 of the Act. Relevantly:

‘ 9 War-caused injuries or diseases

(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...’

24 Sections 120 and 120A of the Act are relevant to the respondent’s claim:

‘120 Standard of Proof

(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.

(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;

the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-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 a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or

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

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

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

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

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

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

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

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

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

Section 120A relevantly provides:

‘120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.

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

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

(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis. ...’

25 SoP 76 of 1998 concerns alcohol dependence and alcohol abuse. The SoP defines both alcohol dependence and alcohol abuse. As noted above, it is not in dispute that the respondent suffers from a condition of alcohol abuse or alcohol dependence. Paragraphs 3, 4 and 5 of the SoP provide:

‘Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

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

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:

(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e) inability to obtain appropriate clinica management for alcohol dependence or alcohol abuse.’
(Emphasis in the original)

26 Paragraph 8 of the SoP relevantly provides:

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

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or

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

(Emphasis in the original)

27 The AAT rejected that the respondent had experienced a ‘severe stressor’ as a result of the landrover incident. The AAT said:

‘32. ...the Tribunal accepts the [appellant’s] submission that the SoP requires that the person experienced an event that involved actual or threatened death or serious injury. The definition contemplates, in the Tribunal’s view, that there is an immediacy of exposure to the event. Here the casualties were being transported to hospital and this is several steps removed from the threat envisaged in the definition. It is not evident that what the [respondent] observed was equivalent to a situation where, for instance, a person observes at first hand casualties being cleared immediately after injuries were sustained or observed the injuries occurring. What the applicant observed was the end part of casualty clearance as is referred to in the SoP. When this is taken into account with the very brief period in which the applicant could have observed the casualties being transported in a landrover travelling in excess of 60 klms per hour, the remoteness of the experience is underlined.

33. Furthermore, the evidence does not point to the [respondent] experiencing fear, helplessness or horror. His descriptions were that he felt sick in the stomach. His oral evidence was that it was the sort of thing that had to be expected. This was consistent with evidence given to Dr Mulholland and to Dr Likely. Even accepting Mr Honchin’s submission that the SoP requires only that the event "might" evoke fear, helplessness or horror, the Tribunal does not accept that the definition of severe stressor is met on the material here. The [respondent] was a soldier of quite senior rank at the time of the landrover incident with over 10 years experience in the Army. A reasonable person with the level of experience and seniority that the applicant had as an enlisted person would not experience fear, helplessness or horror in a brief exposure to casualties being transported to hospital. The danger to them was [sic] clearly passed.

34. For the reasons given the landrover incident does not meet the requirements of being a severe stressor.’

28 The primary judge at [17] noted that the AAT had referred to the decision of the Full Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 (‘Deledio’), and his Honour noted that Deledio ‘establishes (at 97-8) that the proper approach to the application of ss 120 and 120A and the statement of principles involves the following four-step process:

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

3. If an [statement of principles] 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 [statement of principles] . 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 capacity, 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." ’

29 As the primary judge noted at [18], ‘The importance of the distinction between steps 3 and 4 appears from the following passage in the judgment of Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at [25]:

"The question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant’s story is probably true. Although the decision maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision maker is likely to reject the application even though he or she thinks the claimant’s story may possibly be true. This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits the factors in the relevant Statement of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification."’

30 The primary judge concluded that the course by which the AAT reached the conclusion [that the landrover incident did not involve experiencing a severe stressor] involved a number of errors concerning the requirements of the SoP, and the nature of the task it was undertaking.

31 The first major error identified by his Honour was the interpretation of ‘casualty clearance’ as used in par 8 of the SoP; the second was the requirement for the respondent to have experienced emotions of ‘intense fear, helplessness or horror’.

32 Concerning the first identified error, the primary judge said at [21]:

‘ ... It appears to have considered that only an event which actually caused death or serious injury or subsequent casualty clearance sufficiently close in time and space to such causation could be a relevant event. Such an approach is not prescribed by the statement of principles. The statement of principles provides that participation in, or observation of, casualty clearance per se, may be a severe stressor. That was the applicant’s case. The question was whether that event "involved" death or serious injury or the threat thereof. The applicant claimed that, on his observations, it did so, largely because of the amount of blood which he saw. The AAT did not reject the landrover incident as a potential severe stressor because it considered that the condition of the men in question had not suggested the possibility of death or serious injury. It rather concluded that the applicant’s observation of the men was at a time and place too far removed from the infliction of the relevant injuries. That approach ignored the fact that the statement of principles clearly included observation of casualty clearance as a possible severe stressor, and that such an event must often involve threat of death or serious injury.’

33 As noted at the outset, the error identified by the primary judge in this approach by the AAT is sufficient for the appeal to be dismissed. It is, however, necessary to deal with the other aspect argued on the appeal; namely, the correct interpretation of the definition of ‘experiencing a severe stressor’ in the SoP.

34 In [33] of the reasons of the AAT set out above, the Tribunal concluded that the applicant did not experience ‘fear, helplessness or horror’. Although accepting that the SoP only required that the event ‘might’ evoke those feelings, the AAT said at [33]:

‘ ... the Tribunal does not accept that the definition of severe stressor is met on the material here ...’

35 This conclusion was fortified by the observations which the AAT made about the length of service of the respondent, and the comment at [33]:

‘ ... A reasonable person with the level of experience and seniority that the applicant had as an enlisted person would not experience fear, helplessness or horror in a brief exposure to casualties being transported to hospital. The danger to them was [sic] clearly passed.’

36 The primary judge was critical of the AAT’s robust assertion of how a reasonable person might react to battle casualties. The primary judge said at [26]:

‘ ... The question was not whether a reasonable person of the same rank and experience as the applicant would have experienced intense fear, helplessness or horror. The question was simply whether or not the applicant had identified an event which might have evoked such a reaction.’

37 The primary judge appears by this last sentence to be indicating that there is no necessary subjective element required in relation to ‘experiencing a severe stressor’. The primary judge said earlier at [23]:

‘It was ... necessary that the landrover incident "...might evoke intense fear, helplessness or horror." The subject of the compound verb ‘might evoke’ is the ‘event or events’. This invites an examination of the event itself rather than its effect upon the applicant.’

38 The reasons of the primary judge seem to suggest that there is no subjective element in the requirement of ‘experiencing a severe stressor’, and the examination of the event has to be assessed entirely objectively. That approach is inconsistent with the reasons for judgment of two Full Courts; the first in Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 77 ALD 67 affirming the decision of Mansfield J at first instance in Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366, and Woodward v Repatriation Commission [2004] FCAFC 160; (2003) 75 ALD 420, particularly at 439-440.

39 The primary judge, nonetheless, concluded that, ‘Even if, for the purposes of step 3 [in Deledio] it was necessary that the evidence point to the applicant’s having experienced feelings of intense fear, helplessness, or horror, his claim had that effect’.

40 It is appropriate to make some observations concerning the formulation of ‘experiencing a severe stressor’, which is to be found in the definition in the SoP.

41 Unhappily, that definition is ambiguous.

42 On one interpretation, ‘experiencing a severe stressor’ is defined by the first subpar of par 8 of the SoP, including the requirement that the particular event or events have the quality that they ‘might evoke intense fear, helplessness or horror’.

43 On that interpretation, the second subpar in par 8 of the SoP includes mere examples of such events, but do not dispense with the requirement that the events specified in (i), (ii), (iii) of that subpar have the quality that the relevant event ‘might evoke intense fear, helplessness or horror’.

44 Some support for this interpretation is found in the duplication constituted by the reference to ‘threat of death or serious injury’ in the first subpar, and ‘threat of serious injury or death’ in (i) of the second subpar.

45 The other interpretation is that the first and second subpars of par 8 of the SoP are cumulative instances of severe stressors. In particular, if a person experienced, witnessed, or was confronted with any of the events described in (i), (ii), and (iii) of the second subpar of par 8, the requirement of experiencing a severe stressor is met. That interpretation is supported by the words in that subpar, namely, ‘events that qualify as severe stressors include: ...’.

46 Thus it would be that the observation of casualty clearance would satisfy the requirement of ‘experiencing a severe stressor’ because ‘observation of casualty clearance’ ‘qualifies’ as a severe stressor. The clumsiness of the requirement that a person ‘experienced, witnessed, or was confronted with’ the ‘observation’ of casualty clearance is simply to be noted.

47 The difficulties in the drafting are plain, but in our judgment, the better view is to regard the second subpar as defining events, which, if experienced, qualify as ‘experiencing a severe stressor’.

48 The matter has to be sent back to the AAT for consideration in accordance with the law as ordered by the primary judge.

49 The primary judge referred to what his Honour described at [28] as ‘apparent weaknesses in the applicant’s case, particularly having regard to the medical evidence’. His Honour noted that it was only ‘recently’ that the applicant said anything about the landrover incident, and it was not until a further interview in March 2004 that this link was identified. Further, his Honour noted that the applicant had a ‘long history of heavy drinking [and] that he had increased his alcohol consumption in Vietnam before the landrover incident’. Those matters, as his Honour noted, are properly to be considered at step four of the process referred to in Deledio, if that step is reached.

50 For the above reasons, the appeal should be dismissed, and the appellant should pay the respondent’s costs of the appeal, to be taxed if not agreed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender, Weinberg and Edmonds.

Associate:

Dated: 26 June 2006

Counsel for the Appellant:	Roger Derrington SC Helen Bowskill
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Darin Honchin
Solicitor for the Respondent:	Purcell Taylor Lawyers
Date of Hearing:	22 February 2006
Date of Judgment:	26 June 2006