Ward and Repatriation Commission [2002] AATA 809 (17 September 2002)

Last Updated: 23 September 2002

DECISION AND REASONS FOR DECISION [2002] AATA 809

ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/1439

VETERANS' APPEALS DIVISION

Re: Barrie Thomas Ward

Applicant

And: Repatriation Commission

Respondent

DECISION

Tribunal: Mr P.J. Lindsay, Senior Member, Dr J. Campbell and Mr S. Webb, Members

Date: 17 September 2002

Place: Sydney

Decision: The decision under review is set aside. In substitution the Tribunal decides that Mr Ward is entitled to a disability pension at the special rate from 5 February 1999.

[SGD]Senior Member

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - assessment of rate of pension - post traumatic stress disorder and sensori-neural deafness - whether war-caused incapacity, alone, was the cause of inability to undertake remunerative work - whether special rate of pension applicable

Veterans' Entitlements Act 1986 - ss. 14,19, 21A, 24, 28 and 120

Repatriation Legislation Amendment Act 1985 - Sch. 2

Parliamentary Debates, House of Representatives, 17 May 1985, Second Reading Speech, Minister for Veterans' Affairs

Department of Veterans' Affairs 1998 Guide to Assessment of Rates of Veterans' Pensions, 5^th edition, Canberra

American Psychiatric Association 1995 Diagnostic and Statistical Manual of Mental Disorders, 4^th edition, Washington DC

Cavell v Repatriation Commission (1988) 9 AAR 534

Birtles v Repatriation Commission (1991) 33 FCR 290

Bowman v Repatriation Commission (1981) 51 FLR 374

Repatriation Commission v Bowman (1981) 54 FLR 8

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1

Repatriation Commission v Smith (MJ) (1987) 74 ALR 537

Forbes v Repatriation Commission (2000) 171 ALR 131

Chambers v Repatriation Commission (1995) 36 ALD 207

Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286; (1989) 11 AAR 369

Banovich v Repatriation Commission (1986) 69 ALR 395

Magill v Repatriation Commission [2002] FCA 744

Repatriation Commission v Sheehy (1995) 133 ALR 654

Fox v Repatriation Commission (1997) 45 ALD 317

Re Reilly and Repatriation Commission (1987) 12 ALD 533

Repatriation Commission v Braund (1991) 23 ALD 591

REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member

1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 2 September 1999, as affirmed by the Veterans' Review Board on 22 August 2001, to assess disability pension at 100 per cent of the general rate from 5 February 1999.

2. At the hearing, Mr Ward, the applicant, was represented by Mr N. Dawson of counsel and the Commission by Ms S. Breuer of the Advocacy Section of the Department of Veterans' Affairs. Mr Ward gave evidence and Dr Dinnen, consultant psychiatrist, gave evidence on his behalf.

3. The Tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the following documents were tendered at the hearing:

- Exhibit A1 Report by Dr Dinnen dated 7 March 2002

- Exhibit A2 Statement by Mr Ward dated 30 April 2002

- Exhibit R1 Report by Dr Walden dated 7 March 2002

- Exhibit R2 Report by Dr Chen dated 24 April 2002

- Exhibit R3 Letter from AAP dated 19 March 2002 with 2 attachments

background

4. Mr Ward was born on 3 August 1934. He left school at age 16 and commenced work as a copyboy with The Sydney Morning Herald in 1952. He undertook National Service training for six months in 1952 and was in the Air Force Reserves for a number of years.

5. On 23 January 1967 he joined the RAAF and was commissioned as a Flying Officer. His operational service included a tour of duty in Vietnam, between 7 February 1967 and 5 February 1968, as a public relations photographer and gunner. On returning to Australia, he was discharged on 22 February 1968 and returned to work at News Limited.

6. Mr Ward was employed by News Limited for approximately thirty-two years until being made redundant in 1991. Soon thereafter he was employed by AAP Information Services Pty Limited (AAP) to manage pictorial syndications. He continued in this role until being made redundant on 20 December 1996.

7. On 5 May 1999 Mr Ward made a claim for disability pension under s.14 of the Veterans' Entitlements Act 1986 ("the Act"). On 2 September 1999 the Commission assessed disability pension at 100 per cent of the general rate and stated that "Neither Intermediate Rate nor Special Rate is payable as you took voluntary redundancy in 1996 and did not subsequently look for work as you had retired from employment" (T13). Mr Ward has the following disabilities accepted by the Commission as war-caused:

- Otitis Externa

- Haemorrhoids

- Irritable Colon

- Sensori-Neural Deafness

- Post Traumatic Stress Disorder

- Ischaemic Heart Disease

8. On 12 October 1999 Mr Ward sought review of the decision "[b]ecause the circumstances surrounding voluntary redundancy were directly related to my accepted disabilities. Long history of difficulties in work place ... now unable to work due to accepted disabilities" (T14). On 29 August 2001 the Veterans' Review Board affirmed the Commission's decision. Mr Ward applied for review by the Tribunal on 21 September 2001.

legislation

9. Mr Ward contends that his pension should be at the Special Rate, the qualifications for which are set out in s.24 of the Act which relevantly reads as follows:

24 Special rate of pension

(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

...

10. The Tribunal is directed by s.28 of the Act as to the matters to be taken into account in determining capacity to undertake remunerative work for the purpose of s.24(1)(b). Section 28 states:

Capacity to undertake remunerative work

In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

evidence

11. Mr Ward's evidence was that he completed a four year photography cadetship with The Sydney Morning Herald, and subsequently worked as a photographer and pictorial editor on newspapers in Vancouver, Canada and Wollongong, New South Wales prior to joining News Limited in 1959. On returning from Vietnam and resuming employment at News Limited, Mr Ward worked initially as a photographer on various newspapers until 1969 when he became the pictorial editor of The Sunday Australian and later The Sunday Telegraph. This position involved administrative work, making decisions about the pictures to be taken and published, and then giving the appropriate instructions to the staff photographers. He remained in this role until 1976 when, as he said, he was "removed" and went "back on the road" as a photographer. At the time, he was not told why he was being removed. About a year later, he was appointed an assistant pictorial editor at The Australian newspaper and in 1982 he became the pictorial editor. In 1986 he was sent back out on the road for a while. He came back as the pictorial editor of The Australian but was then moved to the Melbourne office for about three months. After successfully completing his work in Melbourne, Mr Ward returned to Sydney in 1988 and started the syndications group for all the News Limited newspapers. He continued in that role until he took a redundancy in 1991. Mr Ward said that in that role and as pictorial editor, he participated in conferences, frequently twice a day, with the news editor, features editor, sports editor and others, to agree on the size of the newspaper, the available space for pictures, what pictures should be taken and the prominence to be given to the pictures. The conferences caused him stress. He was often unsure of what was required of him because he could not hear everything that had been discussed. He would then have to approach individuals later to check with them as to what they expected. In addition, Mr Ward said some of his staff played up, they would not do as he instructed, and this behaviour, as well as problems he had in communicating with staff and colleagues at the conferences, made him "uptight". Altercations with staff occasionally became aggressive. On his return from Vietnam he said he used to be an extremely heavy drinker. He said that consuming alcohol was a part of the culture of work in the newspaper business, but that this did not adversely affect his ability to do his work. He had not been disciplined by his superiors, but felt that he had been moved to avoid problems with other staff, giving his move to Melbourne as an example.

12. Subsequent to taking News Limited's offer of redundancy, Mr Ward accepted a position in 1991 with AAP, who wanted to establish a pictorial syndications function. He had five full time and three casual staff reporting to him. He was employed by AAP for approximately five years before his position was made redundant in December 1996. The redundancy was part of a larger restructuring, and other positions were also made redundant. AAP had no record of Mr Ward having any behavioural or disciplinary problems; he took only six days of sick leave during his employment (Exhibit R3). While at AAP, if he wanted to, Mr Ward could go out for a drink at lunch time. He was in charge of his own group and as long as he had completed his work, he could choose when to go out for a drink and return to the office. Mr Ward told the Tribunal that, although there used be only one conference a day at AAP, he found that his hearing difficulties and consequent need to ask people to repeat things, caused a lot of people to get annoyed. He acknowledged that his hearing loss made it more difficult for him to do his work and made him slower. Being made redundant upset him because he had a sense of achievement at AAP, through successfully introducing change to part of their business.

13. Mr Geoff Want, former director of AAP's Information Technology group and to whom Mr Ward reported during his final two years of employment, has recorded that Mr Ward enjoyed an outstanding career both as a photographer and editorial administrator, and his experience was seen by AAP as a valuable asset. Further, Mr Want wrote the following reference on 3 July 2001 (T17 p.77):

... During his tenure at AAP Mr Ward found it increasingly difficult to come to terms with the rapid technological changes occurring in the photo industry, especially the onset of digital imaging. His hearing difficulties also caused communication problems with his colleagues.

Mr Ward became increasingly irritable, which I believe was caused by his frustration at trying to cope with the pressures of the job, much of it brought about by technological change.

Mr Ward's position was made redundant at AAP in late 1996, a decision I strongly believe was based more on health and personality matters rather than business issues.

...

14. In cross-examination Mr Ward agreed that when he was made pictorial editor of The Australian, a daily newspaper, he was given a more responsible position. On becoming syndications editor he assumed a more strategic, organisational role, selecting the stories and pictures that would be of interest to readers of all News Limited newspapers around Australia. However, he said that when he was sent out on the road he was being demoted. Mr Ward agreed that, if his position at AAP had not been made redundant, he would have preferred to have stayed on. He told the Tribunal that in his last year of service with AAP he was a bit tense, but was not sure if that was caused by staff not measuring up to his expectations or the new technology he had to use. During that final twelve months, he had one run in with one of his staff and, on occasions, would let his superiors know if he considered that their approach to a job differed from what he thought was the right way to go about it. He acknowledged that he could be a bit dogmatic about things but felt his greater experience justified his views.

15. In his statement dated 30 April 2002 (Exhibit A2) Mr Ward said the following about his redundancy by AAP and attempts to obtain work subsequently:

4. I consider that being unable to cope with the new technology, and the communication problems I had with staff was a reason for my redundancy.

5. Attempts to gain employment in my profession, photographer or Pictorial Editor was unsuccessful. Metropolitan and suburban newspapers, News Ltd, Sydney Morning Herald, Cumberland Newspapers, Western Suburbs Newspapers were not employing.

...

16. Mr Ward's evidence was that he sought work in the print media and photography industries after being made redundant in December 1996. He applied for positions and sought employment with business contacts and in local businesses. His attempts to gain employment in his profession were singularly unsuccessful. He said that when he phoned to apply for a couple of photographic positions the first things he would be asked about, were his experience and his age. He did not know why he was unsuccessful. He thought that age was a barrier, stating that, despite having a lot of specialised knowledge, it was extremely difficult to get back into his profession at around age sixty because most newspaper people are young. He did succeed in gaining casual 'on call' employment in a car hire firm, but could not do the work effectively. His hearing impairment prevented him from using a mobile telephone, and he left soon after. He registered with the Commonwealth Employment Service in 1997 and continued looking for work, without success, until 2001. On and off in the last few years Mr Ward, in a voluntary capacity, has taken pictures at presentations, openings and other functions involving his local Rotary club. Rotary sends the pictures to local community newspapers for publication.

17. In the employment report that he provided to the Commission (T5) in April 1997, Mr Ward gave the following answers:

Question 1. What is your usual employment?

Photographic manager/photographer.

Question 2. How long have you been engaged in such work?

Forty four years.

Question 3. Are you experienced in any other kind of work?

No.

Question 4. What trade, special skills, or other qualifications have you?

Newspapers, photography, computer photo shop. ...

Question 8. If you are not currently working, when did you cease work and why?

December 20 1996. The firm was restructured. ...

Question 10. Where did you last register or apply for work?

Applied to: asked newspapers, metropolitan/suburban.

Question 11. If you are currently unemployed, what do you believe is preventing you from getting a job or being employed?

My age is against employment in my profession.

18. Mr Ward acknowledged that his hearing impairment had an adverse impact on his performance at work and that he had some difficulty with his memory. In answer to questions by Dr Campbell, he was able, with some hesitation, to recall the date of his wife's birthday and his marriage. He could recall some of what he had done on the day prior to the hearing but became confused when asked to recall what he had done two days previously. He was also not able to place in time, meetings he had attended in the days leading up to the hearing.

19. The Tribunal considered Mr Ward to be a genuine and honest witness, providing evidence truthfully and without embellishment.

Dr Keshava

20. Mr Ward said he began consultations with Dr Keshava, consultant psychiatrist, because he had been so uptight about things and he wanted to find out the cause. He said that the consultations started after he had left AAP and have continued every three months. In a report dated 21 April 1997 (T17 fol.78-9), Dr Keshava stated that Mr Ward suffered from post traumatic stress disorder with chronic anxiety state, and noted his heavy drinking in the past, low frustration tolerance, initial and late insomnia, short term memory impairment gout, bilateral deafness and tinnitus. The prognosis was guarded. In a report dated 5 May 1999 (T7), Dr Keshava said Mr Ward's PTSD and depression had deteriorated since last being reviewed fourteen months earlier. In Dr Keshava's opinion Mr Ward needed ongoing psychiatric support. Dr Keshava has prescribed an anti-depressant which Mr Ward said he takes daily. In a subsequent report dated 7 June 2001(T17 fol.80), Dr Keshawa observed that Mr Ward's condition had deteriorated rapidly over the previous six months. In an assessment made pursuant to Guide to Assessment of Rates of Veterans' Pensions, 5th edition and dated 16 August 2001, Dr Keshava noted in relation to ability to work, that Mr Ward's attention and concentration were poor. Dr Keshava assessed Mr Ward as totally and permanently incapacitated (T17 fol.81).

Dr Dinnen

21. In his oral evidence, Dr Dinnen referred to his report dated 7 March 2002 in which he concluded that:

He suffers from chronic and moderately severe psychiatric illness, and the evidence contained in reports from his treating psychiatrist since March 1997 indicates that throughout that time he has not been fit for work because of psychiatric illness. In any event, it is clear from my examination of the patient at this time that he would not be capable of doing any remunerative work for as much as 8 hours per week because of his chronic post traumatic stress disorder and its associated features. (emphasis added).

Dr Dinnen stated that Mr Ward's presentation was very poor, he had difficulty sequencing information, did not provide a coherent and intelligent history and was scatty. Dr Dinnen considered that Mr Ward's presentation and account at interview was not in accordance with his personal background and career. Dr Dinnen found Mr Ward to have a very poor memory and to exhibit symptoms of psychological distress, indicative of very restricted function, and emotional instability.

22. Dr Dinnen's evidence was that these features of Mr Ward's PTSD would prevent him being able to discharge workplace duties for more than eight hours per week. Dr Dinnen said that he would expect Mr Ward to take at least thirty or forty hours to complete eight hours work. Dr Dinnen told the Tribunal that he thought Mr Ward's incapacity from PTSD had been present for some years and probably for more years than was superficially obvious.

Dr Walden

23. In a report dated 7 March 2002 (Exhibit R1) Dr Walden, consultant psychiatrist, noted Mr Ward's memory difficulties, and on conducting simple cognitive tests found Mr Ward's ability to be below expected levels. In Dr Walden's opinion, Mr Ward did not currently fulfil DSM-IV criteria for PTSD, but noted that some of the less specific features of the disorder, including sleep disturbance, irritability and anxiety features are present.

24. Dr Walden also reported (Exhibit R1):

It is possible that his anxiousness and some difficulties with short-term memory may be obvious to a prospective employer.

He describes still wishing to work but feeling that he is unlikely to be able to find work.

Even assuming that the anxiety symptoms Mr Ward has are residual features of a treated Post Traumatic Stress Disorder, I do not think they are of sufficient severity to preclude him working 20 hours per week or more. There are other factors which may be impacting on his work capacity. I note he has multiple physical problems and it appears that his deafness was problematic for him in the workplace. I also note multiple recurrences of melanoma in recent times.

25. Mr Dawson asked Dr Dinnen to comment on Dr Walden's report. Dr Dinnen noted that Dr Walden, in finding that Mr Ward did not satisfy the DSM-IV criteria for PTSD, emphasised the absence of avoidance behaviour in relation to his experiences in Vietnam and the absence of emotional numbing in his relationships with his wife, family and friends. Dr Dinnen, however, considered that avoidance behaviour is not established by direct questioning. He preferred to base his finding of that behaviour on Mr Ward's chronic use of alcohol, which was the best indicator of avoidance phenomena in PTSD. In relation to Mr Ward's ability to work, Dr Dinnen said that it is typical of psychiatric impairment for someone to want to work but be unable or unfit to work. He thought Dr Walden under estimated quite significantly the extent of Mr Ward's psychiatric impairment and could not agree with her opinion that he demonstrated merely residual features of PTSD.

Dr Chen

26. Dr Chen, consultant physician in occupational medicine, examined and prepared a report about Mr Ward dated 24 April 2002 (Exhibit R2). In Dr Chen's opinion:

Given Mr Ward's skills, experience and qualifications, his accepted disabilities would probably not have prevented him from continuing to undertake the remunerative work he was undertaking... It is likely that he could have continued in his job as a pictorial editor from 5 February 1999 to the present had he not been made redundant.

...

In my opinion, Mr Ward's accepted disability, specifically his hearing impairment, would be obvious to a prospective employer as he wears bilateral hearing aids, and despite this he still has slight difficulty hearing. His posttraumatic stress disorder would not be evident to a non-medical person and hence not obvious to a prospective employer.

His hearing impairment would have prevented him from obtaining employment if the specific job required adequate hearing.

Dr Chen reported that Mr Ward thought AAP had made him redundant because he had difficulties coping. While his staff were able to adjust to the new technology used at work, he could not and this caused him to get uptight and have trouble with them.

submissions

27. Mr Dawson submitted that Mr Ward's accepted disabilities, PTSD and sensori-neural deafness in particular, are such that he is unable to continue to work in his field, the newspaper photography industry. Mr Dawson submitted that, due to Mr Ward's mental state and impaired memory, he would not be able to manage his own photographic business for more than eight hours a week, even if he could find work just taking pictures whether using a digital camera or conventional camera.

28. Mr Dawson advocated a commonsense approach, citing Cavell v Repatriation Commission (1988) 9 AAR 534. Referring to Birtles v Repatriation Commission (1991) 33 FCR 290 and Bowman v Repatriation Commission (1981) 51 FLR 374, Mr Dawson contended that the Tribunal must take into account the effect of Mr Ward's disability on his earning capacity in the market, being a market that is reasonably accessible to him. Mr Dawson extended the 'hypothetical man test' discussed by the Full Court in Repatriation Commission v Bowman (1981) 54 FLR 8, contending that if a hypothetical person was not able to get a job with the applicant's skills, qualifications and experience, then the applicant's failure to obtain work would not be due to his disability alone. Mr Dawson rejected suggestions raised by Ms Breuer's cross-examination that Mr Ward's ability and willingness to take photographs demonstrated his ability to obtain photographic work, contending that this is insufficient for the purpose: it is also necessary for him to be able to access the market and there was no evidence of such a market.

29. With regard to the ameliorating provisions in s.24(2)(b) of the Act, Mr Dawson contended that Mr Ward's accepted disabilities, which are obvious, are the reason he is unable to remain in the paid workforce. Mr Ward's age, even though cited by him as a reason for his failure to find work, is not relevant in the context of his disabilities.

30. Mr Dawson observed that the legislation sets out clear criteria for special rate pension in reflection of policy. It is not necessary to attempt to read the legislation down by reference to the Minister's Second Reading Speech on introduction, where there is no ambiguity. In Mr Ward's situation, entitlement to special rate pension depends upon satisfying the statutory criteria, including being under the age of 65 at the date of application.

31. At the outset Ms Breuer contended that the special rate pension was not intended for a veteran in Mr Ward's circumstances. The Commission relied on the Second Reading Speech of the then Acting Minister for Veterans' Affairs upon the introduction of the Repatriation Legislation Amendment Bill 1985 in the following terms:

Since 1920, there has been a special rate of disability pension payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or continue in civil employment. The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian workforce. Determining authorities have found the application of the present legislative provisions difficult because the provisions, unchanged since 1920, contain outmoded and imprecise terms. The amendments clarify the eligibility criteria and make it clear that to qualify for a TPI pension a veteran must be eligible for the 100% general rate pension. In addition, the TPI rate pension can become payable only when a veteran is totally and permanently disabled by accepted disabilities and is thereby precluded from continuing to engage in remunerative work. If a person has had the usual span of a working life or has retired voluntarily or has left employment for reasons other than the accepted disabilities, a TPI pension is not payable. It would be only in very rare cases that a veteran beyond the normal retirement age could be eligible for this pension. Special provision is made by the Bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work. (see Parliamentary Debates, House of Representatives, 17 May 1985 at pp.2645-6).

32. Ms Breuer submitted that there was no evidence before the Tribunal that Mr Ward would not be able to work for more than eight hours per week. Ms Breuer contended that Mr Ward failed to meet the qualifying requirements of s.24(1)(b), leading the following arguments:

(a) The evidence points to Mr Ward's condition having existed for an extended period, during which he was able to work for a single employer and take on additional responsibility over the span of thirty-two years, despite being moved out of positions from time to time;

(b) The PTSD diagnosis is questionable, as indicated in Dr Walden's report (Exhibit R1) and the claim therein that Mr Ward "...does not describe avoidance behaviour, is interested in items about Vietnam, wants to write a book about his time there and keeps photographs of Vietnam around him in the house." ; and

(c) Mr Ward's ability to work is demonstrated by his carrying out voluntary work for his local Rotary Club.

33. Following the steps set out by Branson J in Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1, Ms Breuer submitted that:

(a) the remunerative work that Mr Ward was undertaking was photography and pictorial editing;

(b) Mr Ward's war-caused disabilities did not prevent him from continuing that work - he had been made redundant;

(c) there were other factors which prevented him from continuing the work, namely:

(i) age,

(ii) lack of availability of work, and

(iii) his not being 'up to date' with the new technology;

therefore Mr Ward was not suffering a loss of salary or earnings that he would not be suffering if he were free of his incapacity.

34. Ms Breuer agreed with Mr Dawson that a practical commonsense approach is required, applying Cavell's case.

35. Ms Breuer extended argument to the question whether the ameliorating provisions in s.24(2)(b) apply, contending that Mr Ward's incapacity due to his accepted disabilities is not the substantial cause of his inability to obtain remunerative work, age being the significant factor. Ms Breuer argued that Mr Ward did not satisfy the condition contained in s.24(2)(a)(i) of the Act because he ceased to engage in remunerative work at AAP and at News Limited due to redundancy, and not his accepted disabilities.

consideration of issues

36. In making a determination, decision or assessment of the rate of pension payable in relation to Mr Ward's application, s.120(4) of the Act requires the Tribunal to decide the matter to its reasonable satisfaction, thereby introducing the civil standard of proof: Repatriation Commission v Smith (MJ) (1987) 74 ALR 537. Pursuant to s.19 of the Act, the relevant time for determining Mr Ward's entitlement to the special rate of pension is during the "assessment period", that is from 5 May 1999 until the date of the Tribunal's decision: Forbes v Repatriation Commission (2000) 171 ALR 131.

37. There was no dispute between the parties concerning the matters covered by ss.24(1)(aa), 24(1)(aab) and 24(1)(a) of the Act. The Tribunal finds that Mr Ward has made a claim for pension, he had not turned sixty five when he made the claim and his degree of incapacity from war-caused disabilities has been determined under s.21A of the Act to be at least 70 per cent.

Section 24(1)(b)

38. In the first instance, the task of the Tribunal is, under s.24(1)(b), to determine whether Mr Ward is totally and permanently incapacitated. That is, his incapacity from his war-caused disabilities, alone, must have rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

39. In determining whether Mr Ward satisfies the criteria in s.24(1)(b), the Tribunal may take into account only the matters set out in s.28 of the Act. The Tribunal is mindful of the arguments raised in submissions but notes that s.28 is exhaustive of the matters to be taken into account when making a determination under s.24(1)(b). The following passage from the joint judgment of Moore and Sackville JJ (Davies J agreeing) in Chambers v Repatriation Commission (1995) 36 ALD 207 at 218 is instructive:

It may be accepted that s.28 focuses the inquiry that s.24(1)(b) would otherwise require. As Davies J pointed out in Re Thompson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 (AAT), at 430-1, in relation to an equivalent provision in the 1973 Act, the effect of s.28 is to exclude a number of matters which otherwise might have been relevant to the determination required by s. 24(1)(b). Such matters as depressed labour market conditions are excluded from consideration for the purposes of s.24(1)(b) (although some of the these may be relevant to the separate determination required by s.24(1)(c) of the 1986 Act as to whether war-caused incapacity has prevented the veteran from continuing to undertake remunerative work).

40. The joint judgment held that a narrow approach is not to be taken to the construction of either s.28(a) or s.28(b). Their Honours found that the purpose of s.28(a) is to direct attention to the range of employment opportunities available to a veteran, but for his or her disability. A veteran's skills and qualifications that enable the veteran to undertake remunerative work must be taken into account despite the skills and qualifications having been acquired independently of and not having been utilised in any previous employment. In relation to s.28(b) it was noted that (Chambers' case at 222-3):

"A broad view of s.28(a) does not produce the result that opportunities for remunerative work must be considered, even where it would be unreasonable for a person with the veteran's skills, qualifications and experience to undertake that work. Section 28(b) requires the question of reasonableness to be addressed."

Their Honours also referred to the following passage from a case under the 1973 Act, the Full Court's decision in Defence Force Authority v House (1989) 11 AAR 369, at 372-3:

One thing which is abundantly clear is that para (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open.

41. For the purpose of s.28(a), there is little evidence before the Tribunal on which to base an assessment of Mr Ward's vocational, trade and professional skills, qualifications and experience, above and beyond those acquired in or deriving from his previous employment. For the purpose of s.28(b), Mr Ward's work as a driver would indicate that he may have the skills, qualifications and experience necessary to undertake remunerative work as a driver, however there is no evidence before the Tribunal, in the form of a current driver's licence for example, indicating this to be the case. Similarly, his previous work in the Air Force as a public relations photographer and gunner may indicate the existence of some skills, qualifications or experience offering further opportunities for remunerative work. However, the Tribunal has no specific evidence before it to advance this proposition.

42. Accordingly, in the Tribunal's view of the evidence, Mr Ward was qualified for, and experienced in, work as a photographer, pictorial editor or pictorial syndications manager in the print media or in related business, for example commercial photography. The Tribunal finds such work to be the kinds of remunerative work that a person with Mr Ward's skills, qualifications and experience could reasonably undertake.

43. Turning to s.28(c) it is necessary to have regard to the degree to which Mr Ward's war-caused impairment has reduced his capacity to undertake the kinds of remunerative work referred to above. The medical evidence, taken as a whole, describes with some consistency the symptoms being suffered by Mr Ward that are associated with PTSD and sensori-neural deafness, both of which are accepted as war-caused. However, there is some difference of opinion between the experts when assessing the impact of these conditions on his capacity to undertake remunerative work.

44. The Commission accepts that Mr Ward has no disabilities that are not war-caused.

45. In August 2001, Dr Keshava, Mr Ward's treating psychiatrist assessed him as being totally and permanently incapacitated as a consequence of his rapidly deteriorating condition (T17 fols.80 and 81). Dr Dinnen reported that he would not be capable of doing any remunerative work - not only work of a kind for which he was suited by reason of qualifications or experience - for more than eight hours per week because of his PTSD and its associated features (Exhibit A1). Dr Walden, however, does not support a diagnosis of PTSD because Mr Ward did not evince avoidance behaviours. Further, Dr Walden reported that Mr Ward's residual features of PTSD would not preclude his working twenty hours or more a week. But she did observe that other factors, and in particular his deafness, could be an obstacle to his obtaining and holding a job. Dr Walden did not give an overall assessment, taking into account all of the factors she identified as having an impact on his work capacity. The Tribunal is also mindful of Dr Walden's comments about Mr Ward's cognitive performance being below the expected levels and about his short-term memory difficulties. Dr Walden commented on his irritability, insomnia, anxiety and variable emotional state in a manner consistent with other expert opinion.

46. The Tribunal notes that PTSD is an accepted disability. As to the difference of opinion between Dr Walden, on the one hand, and Dr Dinnen and Dr Keshava, on the other, each of whom has diagnosed Mr Ward as suffering from chronic PTSD, the Tribunal prefers Dr Dinnen's opinion and that of Dr Keshava, the psychiatrist who has been treating Mr Ward for about the last five years.

47. Dr Chen reported that she did not find any objective evidence of Mr Ward's accepted disabilities having prevented him from undertaking remunerative work during the assessment period (Exhibit R2). However, Dr Chen makes the observation that Mr Ward's hearing impairment would be obvious to a prospective employer and would have prevented him from obtaining employment if the specific job required adequate hearing. Noting Dr Chen's sub-speciality in occupational medicine pertains to musculo-skeletal medicine, the Tribunal is mindful that Dr Chen's 'Findings on Examination' were limited to musculo-skeletal matters. It is not clear to the Tribunal what criteria Dr Chen used to assess the extent to which Mr Ward's accepted disabilities, which are not musculo-skeletal, prevent him from undertaking remunerative work, if at all.

48. The material before the Tribunal included the evidence of Mr Ward himself, wherein, albeit unwittingly, his war-caused disabilities were given symptomatic expression, particularly his hearing difficulties and memory problems. However, in making this observation the Tribunal does not draw any medical conclusion about him. His evidence that he was unable to perform the duties of a hire car driver because his hearing difficulties prevented him using a mobile telephone, as required, gives further support to the Tribunal's interpretation of the medical evidence.

49. The Commission's submission on this question goes to the matter of 'degree'. The Commission contends that his war-caused disabilities did not prevent him successfully pursuing full time remunerative work over a long period of years. In advancing this contention, the Commission relied on Dr Walden's report, questioning the currency of the PTSD diagnosis, and the prospect that Mr Ward's voluntary pursuits with the Rotary Club demonstrate his continuing capability to undertake remunerative work.

50. In sum, the weight of the medical evidence of Dr Keshava and Dr Dinnen supports a finding, on the balance of probabilities, that Mr Ward's PTSD has totally and permanently incapacitated him. The Tribunal accepts Dr Dinnen's evidence and in applying s.24(1)(b), the Tribunal finds on the balance of probabilities, that Mr Ward's accepted disability of war-caused PTSD, alone, is sufficient to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

Section 24(1)(c)

51. The Tribunal's task under s.24(1)(c) is to determine whether, during the period from 5 May 1999 to the present, Mr Ward's incapacity from his war-caused disabilities, alone, has prevented him from continuing to undertake remunerative work that he was undertaking. The second limb of the paragraph requires the Tribunal to determine whether by reason of being so prevented, he has suffered a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity. In carrying out this exercise, the Tribunal is to have regard the matters referred to in s.24(2) of the Act.

52. The Full Court in Flentjar's case identified the following as the four issues that a decision-maker and the Tribunal must consider (at 4-5):

1. What was the relevant "remunerative work the veteran was undertaking" within the meaning of s.24(1)(c) of the Act?

2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

53. For the purpose of 1. above, the Tribunal refers to the words of the Full Court in Banovich v Repatriation Commission (1986) 69 ALR 395, when it discussed the expression "remunerative work" in earlier, though for present purposes, substantially similar, legislation at 402:

But it is, in our opinion, erroneous to read the phrase 'remunerative work that the member was undertaking' as referring to a particular job with a particular employer. The term 'remunerative work' is used in the Schedule in a context which indicates an intention to refer to work generally ... Consistently with that use, the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job.

54. Applying that principle, the Tribunal finds that the work carried out by Mr Ward in his profession as photographer, pictorial editor and pictorial syndication manager in the print media or related business to be "remunerative work that the veteran was undertaking" for the purposes of s.24(1)(c).

55. The second Flentjar step requires the Tribunal to consider whether Mr Ward's war-caused disabilities prevent him from continuing to undertake remunerative work. For reasons already given pursuant to s.24(1)(b), the answer to that question is yes.

56. For the purpose of the third Flentjar step, it is necessary to determine whether his war-caused incapacity is the only factor preventing him from continuing with that work. In this context, it should be noted that Burchett J in Cavell's case (at 539-540) approved the following statement made there by the Tribunal as being an appropriate application of the statutory test: "Again it follows from the use of the word 'alone' in s.24, that any factor having employment consequences which play a part in the applicant's inability to work or to obtain and hold employment, is sufficient to displace the applicant's case for pension at special rate." It is here that the matters raised by the Commission in submissions must be dealt with. That is, do any of the factors of age, lack of availability of work, and 'not being up to date with new technology' prevent him from continuing to undertake the remunerative work.

57. As to 'not being up to date with new technology', the Tribunal is mindful that Mr Ward told Dr Walden about his attending a course of training, relating to new digital image processing technology, while working at AAP. He passed the course but did not feel that he had mastered the new technology. Yet previously, he had had no difficulty using the necessary photographic processes and equipment. The Tribunal considers it important that the medical evidence reveals a progressive deterioration in his psychiatric condition. Dr Keshava observed his patient's condition deteriorate in a fourteen month period up to May 1999 (T7), and then rapidly deteriorate in the six months to June 2001 (T17 fol.80). Dr Dinnen gave evidence about Mr Ward's very poor memory, which he said was quite typical of chronic psychiatric illness. Mr Ward's level of anxiety, disjointed thought processes, poor concentration, which were due to his chronic PTSD, was such that it led Dr Dinnen to assess his impairment for manifest or objective distress quite highly at 15 points under the Guide to Assessment of Rates of Veterans' Pensions, (5th edition). It is reasonable to conclude that such difficulties may have an adverse impact on a person's ability to master new processes and equipment. On the basis of Dr Keshava's and Dr Dinnen's evidence, the Tribunal is satisfied that Mr Ward is not able to operate new, digital technology or acquire new skills for use in his profession because of his impairments, that are due to his war-caused PTSD.

58. With regard to the question of age, where the only evidence was Mr Ward's comments that he felt it extremely difficult for even a highly skilled person aged about sixty to get back into the newspaper industry and that he felt some prospective employers lost interest in him upon asking his age, it is necessary and desirable to apply principles of common sense. The Tribunal recalls the words of Burchett J in Cavell's case (at 539):

It is a decision that should not be made on nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.

59. With these words in mind, it seems to the Tribunal that the Commission's submissions on the issues of age and availability of work turn on the issue of Mr Ward's employability, about which views may differ. On the one hand, a person with skills, qualifications and experience gained over years of work in a profession may be attractive to a prospective employer. On the other hand a prospective employer, with an eye to the future productive capacity of an employee, may be less inclined to employ a person approaching the usual age of retirement. The two hands being in balance, it is reasonable to conclude that a mature person exhibiting characteristics that are commonly associated with diminishing ability and old age, such as memory loss, hearing impairment or difficulty sequencing information, is less likely to attract the favourable consideration of a prospective employer than a mature person with the same level of skills, qualifications and experience, who does not exhibit such characteristics. Similarly, a person who confidently communicates a professional expertise that is imbued with the benefits of long experience is more likely to attract the favourable consideration of a prospective employer than a person of similar age and experience who is not able to communicate with the same confidence.

60. Mr Ward gave evidence that his professional work, and in particular his work as a pictorial syndications manager, entailed a very specific job which required knowledge, skills and contacts around the world. In 1991, at the age of fifty-seven, he was made redundant. He had no difficulty finding suitable employment due to his long career in that profession, having acquired the requisite knowledge and contacts, and being known to have expertise. However, on being made redundant in 1996, at the age of sixty-two, though still possessed of the requisite knowledge, skills and contacts, he was singularly unsuccessful in finding suitable employment. His failure to obtain work through all his endeavours between 1996 and the present stands in stark contrast to his previous experience, in similar circumstances, when he was fifty seven years old. It is clear that some factor or factors had arisen during the last five or more years of his employment which adversely affected his employability to the extent that he was prevented from obtaining work after being made redundant in 1996 and subsequently during the assessment period. The Tribunal does not find it credible to conclude that a person moves from being highly regarded and eminently employable in his profession at the age of fifty-seven, in 1991, to the position of being singularly unemployable at the age of sixty-two, in 1996 and thereafter throughout the assessment period simply because of the difference in his age.

61. Mr Want, who worked closely with and was for a time Mr Ward's supervisor at AAP, wrote that Mr Ward had "an outstanding career both as a photographer and editorial administrator and his experience was seen as a valuable asset by AAP in developing the photo business" (T17 fol.77). Mr Want described Mr Ward's increasing irritability, frustration and inability to cope with technological changes in photography being compounded by communication problems caused by his hearing difficulties at AAP. Mr Want's belief that the redundancy when Mr Ward was sixty two in 1996, five years after joining AAP, was "based more on health and personality matters than business issues" (T17 fol.77) appears to derive from a position of knowledge. Taking into account Mr Want's statement and Mr Ward's evidence, the Tribunal finds that the demands of acquiring skills in new technology and Mr Ward's ensuing irritability with staff more able than him to acquire those skills, caused him anxiety and stress in his final year at AAP.

62. It is clear from Dr Keshava's report of 21 April 1997 (T17 fol.79) that Mr Ward was then exhibiting symptoms of PTSD with chronic anxiety state, as diagnosed. Dr Keshava's reports record Mr Ward's condition deteriorating thereafter to a point of total and permanent incapacity. The Tribunal is satisfied, that Mr Ward's symptoms of his PTSD, an accepted war-caused disability - his anxiety, difficulties with concentration and very poor memory - and his hearing loss would have become increasingly obvious to prospective employers over time. On the balance of probabilities, these conditions, and not age, explain his failure during the assessment period to obtain suitable remunerated work in which to engage, and the Tribunal so finds.

63. Finally, there is the issue regarding the lack of work available to him. Ms Breuer referred to Mr Ward's statement (Exhibit A2), histories given to doctors and his evidence given at the hearing about his unsuccessful efforts to find suitable work after being retrenched from AAP. In response to an enquiry by Dr Walden, Mr Ward said he would have liked to have continued at AAP if there had been work available (Exhibit R1) and the Tribunal so finds. The Tribunal finds, on the basis of that evidence and the evidence Mr Ward gave to the Veterans Review Board (T17 fol.71), that he approached national, metropolitan and suburban newspapers; applied for positions with The Australian Women's Weekly magazine and Mode magazine; applied for photographic positions; approached friends in the business; and approached businesses in his locality. Mr Ward located and applied for positions within his profession which were within the ambit of his skills, qualifications and experience but he could not get the work.

64. Mr Dawson drew an analogy with the facts before Hill J in Birtles v Repatriation Commission (1991) 33 FCR 290. There, his Honour held that moving to live in an area where there was little likelihood of obtaining remunerative work would not cause a veteran, ready and willing to work, to fail the 'alone' test in s.24(1)(c) provided the war-caused incapacity alone resulted in the veteran's inability to work. The Tribunal has found that Mr Ward wanted to continue working at AAP. In addition the Tribunal finds that, apart from his PTSD and accepted conditions in particular his loss of hearing, the significance of which for his re-employment had been the subject of comment by Dr Walden and Dr Chen, Mr Ward was ready and willing to undertake remunerative work. But the Tribunal is satisfied on the basis of that medical evidence and Dr Dinnen's that, even if Mr Ward could have found remunerative work, his accepted war-caused impairments would have prevented his undertaking or engaging in that work. Accordingly, the Tribunal finds that Mr Ward's inability to find remunerative work was caused by his war-caused incapacity alone.

65. Given the finding that Mr Ward passes the test in the first limb of s.24(1)(c), reliance upon the ameliorative provision in s.24(2)(b) strictly is unnecessary. However, in view of submissions having been made on the point, the Tribunal will later examine the application of that provision to Mr Ward's circumstances.

66. Turning to the final step in Flentjar's case, it is necessary to consider the second limb of s.24(1)(c) which requires the Tribunal to determine whether the veteran's war-caused incapacity that has left him totally and permanently incapacitated, has caused the veteran to be " ... suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;..." Branson J said that "It is issue 4 which throws up for consideration the question of what Mr Flentjar would have done if he had none of his service disabilities ... ": Flentjar's case at 5. In this regard, consideration must also be given to the matters set out in s.24(2)(a)(i) and (ii).

67. The Tribunal turned to the following words of Bowen CJ, Deane and Lockhart JJ in Repatriation Commission v Bowman (1981) 54 FLR 8 (at 14):

We are reluctant to let loose another hypothetical man in the corridors of judicial administration. It does not appear to us to be necessary to do so. It is sufficient in testing whether an applicant's inability to earn is due to his war related disability to consider whether he would equally be unable to earn if he were free of his disability. The only hypothesis involved in this would be the consideration of the applicant free of his disability.

Adopting this approach, the Tribunal considered the hypothetical circumstance of Mr Ward, at age sixty-four years and nine months and with forty-four years accumulated skills, qualifications and experience in his profession, seeking remunerative work, but free of his disability. For the purpose of exercising the hypothesis, the Tribunal looked to his previous experience. In 1991, aged fifty-seven, he had no difficulty gaining suitable employment within the print media industry on being made redundant. The evidence points to a person of good reputation with desirable skills, qualifications and experience moving without difficulty within an industry, from one place of employment to another. By December 1996, aged sixty-two, he was unable to communicate effectively with clients or colleagues, and was unable to cope with technological changes in the publishing industry. Despite his express desire to continue, he was unable to carry on. He was not employable.

68. In the hypothetical scenario, absent his anxiety and poor concentration, with his hearing, memory and other faculties intact, it is reasonable to assume that Mr Ward would not have had difficulty coping with the communication requirements of his daily work. He would not have had to endure the difficulties associated with memory-loss and failing powers of concentration, especially in relation to mastering new processes and equipment. As a consequence he may not have suffered the high levels of anxiety and stress, and the resultant altercations with staff. It would be reasonable to assume, in these hypothetical circumstances, that Mr Ward would have continued to develop his career in its professional context until, in the fullness of time, he retired with his reputation and earnings intact. Accordingly, the Tribunal finds that, by reason of being prevented from continuing to undertake the remunerative work he had previously undertaken because of his war-caused incapacity alone, Mr Ward is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity.

Section 24(2)

69. Nicholson J in Forbes v Repatriation Commission (2000) 171 ALR 131 held that s.24(1)(c) is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s.24(2): the first limb of s.24(1)(c) is read subject to the application of s.24(2)(b), and the second limb of s.24(1)(c) is read subject to the application of s.24(2)(a).

70. Section 24(2)(b) has been referred to as an ameliorative provision, for example in Magill v Repatriation Commission [2002] FCA 744 per Drummond J at para 7. In Repatriation Commission v Sheehy (1995) 133 ALR 654 Sackville J said that s.24(2)(b) specifies three criteria applicable to veterans such as Mr Ward who had not turned 65 at the time of his claiming pension (at 660):

(i) that the veteran has been genuinely seeking to engage in remunerative work;

(ii) that the veteran, but for the incapacity, would be continuing to seek to engage in remunerative work; and

(iii) that the incapacity is the 'substantial cause' of the veteran's inability to obtain remunerative work in which to engage.

Since the Commission conceded that Mr Ward did genuinely intend to look for work, and in fact did so, it is unnecessary to explore this aspect of s.24(2)(b). The Tribunal has already found that Mr Ward wanted to keep on working at AAP and was ready and willing to engage in remunerative work but for his war-caused incapacity. So the related question whether that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage, must be addressed. In examining s.24(2)(b) Kiefel J in Fox v Repatriation Commission (1997) 45 ALD 317, held that (at 319-320): "The words 'the substantial cause' require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it." Is Mr Ward's incapacity from PTSD, distinct from his other accepted conditions including sensori-neural hearing loss and tinnitus, the operative factor that explains his inability to obtain remunerative work? On the basis of Dr Dinnen's evidence that Mr Ward would be incapable of effectively and efficiently working for more than eight hours a week, the Tribunal is satisfied that even if he were to find remunerative work, he would not be capable of performing the work satisfactorily. The Tribunal finds, to its reasonable satisfaction, his war-caused incapacity from PTSD to be the substantial cause of, or the operative factor explaining, his inability to obtain work. Accordingly, the Tribunal finds that the third question in the Flentjar test should be answered 'yes'.

71. Section 24(2)(a) of the Act is to be read in conjunction with the second limb of s.24(1)(c). Where s.24(2)(a) applies the veteran will not be taken to be suffering such a loss by reason of the incapacity.

72. Sub-paragraph (i) of s.24(2)(a) reads "the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;". Ms Breuer submitted that it was due to redundancy that Mr Ward ceased to engage in remunerative work, being his employment by AAP and News Limited. The Tribunal does not accept this submission. When considering provisions found in paragraph [1](b)(iii) in Schedule 2 to the Repatriation Legislation Amendment Act 1985, a statutory predecessor to s.24(1)(c) and in paragraph [2] in that Schedule, in equivalent terms to s.24(2)(a), the Full Court in Banovich's case (at 402-3) stated that:

We accept that the loss referred to in para[I](b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member 'continuing to undertake' remunerative work. ... the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity.

The Tribunal considers that the expression "the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity " in s.24(2)(a)(i) is not a reference to the cessation of Mr Ward's employment at AAP or News Limited. Rather, it directs the decision-maker to establish why the veteran has ceased to engage in remunerative work not merely why he left his last job. The Tribunal's analysis of s.24(2)(a)'s intended purpose in Re Reilly and Repatriation Commission (1987) 12 ALD 533 is adopted (at 533):

Cessation must be the final termination of employment after which time the applicant no longer undertakes remunerative work for which he has suitable skills and experience for more than eight hours per week: see para 24(1)(b). The intention of para 24(2)(c) [sic] was not, however, to exclude an applicant who was dismissed from particular employment eg, for a criminal offence, which meant he stopped engaging in remunerative work for reasons other than his war-caused injury, if at the time of his dismissal he was also suffering from a war-caused disability which would have rendered him incapacitated for that work at or about the time of his dismissal.

The 'remunerative work' referred to in s.24(2)(a)(i) is a reference to the 'remunerative work that the veteran was undertaking' in s.24(1)(c): Flentjar's case at step 4. The Tribunal has found that the relevant remunerative work, is work as a photographer, pictorial editor and pictorial syndication manager. On the basis of Dr Dinnen's oral evidence, that was not contradicted, the Tribunal finds that Mr Ward's PTSD was present at the time of his redundancy from AAP. The Tribunal is satisfied that Mr Ward ceased to engage in such remunerative work because of his accepted disability, PTSD. The Tribunal has found that Mr Ward would have liked to have continued at AAP if there had been work available. It is also relevant that the Commission has acknowledged that Mr Ward does not have any non-accepted disabilities.

73. Ms Breuer submitted that Mr Ward fails to satisfy s.24(2)(a)(ii), which also qualifies the second limb of s.24(1)(c). The intended operation of the sub-paragraph is not immediately clear. In her submission, Mr Ward is, in the language of the provision, " ... incapacitated, or prevented, from engaging in remunerative work for some other reason;". Ms Breuer argued that his age, inability to find work and difficulty in keeping up with relevant technological changes were such other reasons. The Tribunal notes the observation of Burchett J in Repatriation Commission v Braund (1991) 23 ALD 591 (at 592): "It is not easy to see the reason for the presence of s.24(2)(a), as what it says seems to be necessarily implicit in s.24(1)(c) ...". For the reasons that the Tribunal has found that those matters did not prevent Mr Ward from continuing to undertake remunerative work, the Tribunal finds that such matters similarly do not incapacitate or prevent him from engaging in remunerative work. In addition, the Tribunal considers its approach to the operation of the sub-paragraph accords with the overall beneficial purpose of the Act.

74. It follows that the decision under review should be set aside and in substitution therefor the Tribunal decides that Mr Ward is entitled to be paid disability pension at the special rate with effect from 5 February 1999.

75. Finally, the Tribunal turns to the Commission's contention that the special rate of pension was not intended for a veteran in Mr Ward's circumstances, relying on the Second Reading Speech delivered on introduction of the Repatriation Legislation Amendment Bill in 1985 by the then Acting Minister for Veterans' Affairs. There is no ambiguity in the legislative construction that arises from consideration of this case, nor is there significant difficulty interpreting the statutory provisions on the basis of the facts, once established. It is not, therefore, necessary to turn to the words of the then Acting Minister of Veterans' Affairs for guidance regarding the intentions of the Parliament in this enactment. A veteran's eligibility for special rate pension is to be determined in accordance with the clear criteria that are set out in the Act.

I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: .....................................................................................

Associate

Date of Hearing 24 July 2002

Date of Decision 17 September 2002

Counsel for the Applicant Mr N Dawson

Solicitor for the Respondent Ms S Breuer