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No.6 March 2008

Repatriation Commission and Hill

COURT Federal Court, Darwin
JUDGE Mansfield J
DATE OF DECISION 19 February 2008
DECISION Appeal dismissed. Cross appeal dismissed.
ISSUES Whether the AAT erred in finding Mr Hill did not suffer from PTSD- that his pathological gambling and depressive illness were not war caused-  that his alcohol dependence was war caused – whether material was sufficient to fit the template in the SoP – not permanently incapacitated for work as required by section 37AA of the VEA

Facts

A delegate of the Repatriation Commission (Commission) rejected Mr Hill’s claim for alcohol dependence, depressive disorder, pathological gambling and post traumatic stress disorder (PTSD). He sought further review of each of those decisions by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of the Commission that Mr Hill was not entitled to disability pension in respect of depressive disorder, pathological gambling and PTSD. However, it set aside the decision in relation to alcohol dependence and substituted its decision that this condition was war caused.

In ablockquoteition, a delegate of the Repatriation Commission had refused Mr Hill’s claim for an invalidity service pension. He sought further review of this decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of the Commission.

Grounds of appeal

There were five separate issues to be ablockquoteressed on appeal. The Commission appealed to the Federal Court from the decision of the Tribunal to the extent that Mr Hill suffered from war caused alcohol dependence. Mr Hill cross appealed against the other four decisions of the Tribunal.

The disability pension claim

The alcohol dependence claim

The appeal by the Commission did not concern the Tribunal’s finding that Mr Hill suffered from alcohol dependence. It concerned the Tribunal’s approach to whether his alcohol dependence was war caused. Specifically, the Commission contended that the Tribunal had committed three errors of law:

Justice Mansfield did not accept the first contention raised by the Commission. His Honour considered:

[66] The AAT did not in terms refer to cl 4 of the AD SOP. But it clearly understood the meaning and requirements of the AD SOP, including cl 4. It recorded the first (and accepted) hypothesis as Mr Hill suffering from a psychiatric disorder (alcohol intoxication) at the time of the clinical onset of alcohol dependence, and that that factor, namely the existence of alcohol intoxication at the time of the clinical onset of alcohol dependence, having been suffered while he was serving in Vietnam. That temporal relationship to service meets s 196A(14)(a) of the Act. The submissions of the Repatriation Commission on its second contention recognise that the “temporal overlap stipulated in the SOP, if met, is deemed sufficient to establish the requisite causal connection between the service related factor and the condition” (cl 12 of the Outline of Submissions on the appeal), so I do not need to go beyond that observation…

In relation to the second issue, Justice Mansfield considered that the Commission’s contention involved a misconstruction of the Tribunal’s reasons. His Honour was of the view that the Tribunal appreciated the requirement for the psychiatric disorder (alcohol intoxication) to exist at the time of the clinical onset of alcohol dependence stating:

[73]… It is consistent with that reading of the AAT’s reasons that it described Dr Parker’s evidence, upon which it found that hypothesis was reasonable and as fitting the AD SOP template, as saying that “alcohol intoxication pre-dated or co-existed with alcohol dependence”.  In my view, the contrary contention requires an over-zealous reading of the AAT’s reasons: see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.

In relation to the third contention, Justice Mansfield further considered the evidence of Dr Parker. Particularly, that he could not determine the date of clinical onset of alcohol dependence or its worsening, that he ‘hazarded a guess on the topic’ and said that alcohol intoxication pre-dated the condition of alcohol dependence. It was in the context of this evidence that the Commission argued it was purely conjectural that Mr Hill suffered from alcohol intoxication as a psychiatric disorder whilst in operational service, and whilst he did so he developed the clinical onset of alcohol dependence.

Justice Mansfield did not agree. He considered Dr Parker’s evidence as a whole stating:

[79]…He was speculative as to the precise date of onset of each of those conditions, but not as to the fact of their onset or as to their sequence. His evidence supports the critical issue – the existence of alcohol intoxication at the time of the clinical onset of alcohol dependence. That was material upon which the AAT could have reached its conclusion that a reasonable hypothesis had been raised by reasons of either cl 5(a) or cl 5(c) of the AD SOP being met, i.e. that one of the alternative minimum factors specified for the existence of a reasonable hypothesis connecting Mr Hill’s alcohol dependence with his operational service.

The pathological gambling claim

The Tribunal affirmed the Commission’s decision in relation to Mr Hill’s pathological gambling condition because there was no reasonable hypothesis connecting this condition with Mr Hill’s operational service. Counsel for Mr Hill submitted that this conclusion was “perverse”, so as to somehow demonstrate legal error. In Justice Mansfield’s view the Tribunal did not misapply the law. His Honour stated:

[85]… the AAT’s conclusion that, on the evidence as a whole, the hypothesis connecting Mr Hill’s pathological gambling with his operational service was “speculative”, based on “some very general research”, was open to it.  So too was its conclusion that the hypothesis was not pointed to by the facts.  Its factual conclusions, so long as they were reasonably open to the AAT, do not expose error of law even though other decision-makers may have reached a different conclusion:  see e.g. Willcocks v Comcare (2001) 66 ALD 119.

The depressive disorder claim

In cross appeal, Counsel for Mr Hill sought to challenge the Tribunal’s finding on the ground that it had misconceived the definition of “severe psychosocial stressor.” Justice Mansfield considered that this contention itself was misconceived. His Honour said:

[94]… the contention does not meet the AAT’s primary reason for rejecting the depressive disorder claim.  It was simply that there was no material which could relate the clinical onset or worsening of depressive disorder to the two year period referred to in cl 5(b), (c) or (h) of the DD SOP, as the material only pointed to about 2000 as the time when the clinical onset of depressive disorder occurred.

The PTSD claim

Counsel for Mr Hill contended that the Tribunal, when ablockquoteressing s 120 of the VEA in relation to the claimed condition of PTSD, erred by applying a civil standard of proof – the balance of probabilities – instead of the reverse criminal standard of proof specified in s 120(1).

Justice Mansfield noted from the outset that whether a claimant under the VEA has a particular condition is to be determined on the balance of probabilities. His Honour considered that there was no scope to conclude that in deciding if Mr Hill suffered from PTSD, the Tribunal had misused the PTSD SOP or that it had erred in the way it went about deciding whether Mr Hill suffered from PTSD.

Invalidity service pension claim

The only issue in relation to Mr Hill’s eligibility for an invalidity service pension was whether he was permanently incapacitated for work as required by s37(1)(c) of the VEA. A written determination pursuant to s37AA of the VEA provides the circumstances of permanent incapacity. Clause 5 of that determination is the relevant provision. The Tribunal decided that permanent impairment did not make Mr Hill permanently unable to do work for periods ablockquoteing up to more than eight hours per week. As such, the second of the three criteria in cl (5)(2) was not satisfied.

Mr Hill, through his Counsel, submitted that the Tribunal had erred in law in reaching that conclusion by treating his house parent role as determinative of the question of incapacity for the whole of the relevant period. His Honour noted that the essence of these submissions was that the conclusion was so unreasonable that it could not have been reached, and so legal error must have underlain it.

His Honour considered that the AAT did ablockquoteress the whole of the relevant period and its conclusion was reached on the whole of the evidence. It did not err in law by failing to have regard to a relevant consideration, or by having regard to an irrelevant one, or by misdirecting itself as to the applicable law or by misapplying the law.

Formal decision

Both the appeal and cross appeal were dismissed.

Editorial Note

Many SoPs contain factors that refer to the time of clinical onset of the relevant injury or disease. In a reasonable hypothesis case, where the time of clinical onset is an essential element of an SoP factor, the material must point to at least the minimum diagnostic criteria as existing at the relevant time: Lees v Repatriation Commission (2002) 36 AAR 484.
Relevantly, in this case the diagnostic criteria for alcohol dependence was set out in clause 2(b) of the SOP for Alcohol Abuse and Dependence1 . In accordance with the Full Federal Court’s decision in Lees in order for Mr Hill to meet the SOP, there needed to be material before the decision maker regarding his experience in Vietnam which pointed to him suffering from symptomology which would have satisfied the diagnostic criteria set out in clause 2(b) of the SOP for Alcohol Dependence during that period.

If the decision maker had found that psychiatric opinion in this case was not based on any symptomology that Mr Hill had reported suffering whilst in Vietnam then it would have been open to the decision maker to find that the opinion did not rise above the level of speculation.

Occurrence

In Law’s case,2 the Full Federal Court held that an ‘occurrence’ was ‘an event, incident or mishap which is susceptible of differentiation from the course of events which constitute the ordinary course of life’. By rejecting the Commission’s first ground of appeal, the Court, at paragraph [66] of its reasons, appears to have extended the concept of ‘occurrence’ as that term is used in s 196B(14)(a) and by implication in s 9(1)(a) and s 70(4), such that it includes suffering from alcohol intoxication as a psychiatric disorder.

Further reading: Please see ‘Clinical Onset’ in VeRBosity Volume 22 No 1 at page 7



1 Please note diagnostic criteria in current SOP for alcohol dependence no 17 & 18 of 2008 is contained in clause 3(b).
2 Repatriation Commission v Law (1980) 31 ALR 140.

All Practice Notes