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No.16 August 2008

Repatriation Commission v Norton

[2008] FCA 1132

COURT Federal Court, Melbourne
JUDGE  Heerey J
DATE OF DECISION 5 August 2008
DECISION Appeal allowed, decision of the Tribunal set aside and matter remitted. 
ISSUES Application of the Deledio steps and meaning of a “experiencing a severe stressor”

Facts

The late Mr Goodwin served in the Australian Army in Vietnam from 2 April 1969 until 4 March 1970. He made a claim unsuccessfully for liver cancer caused by cirrhosis of the liver. The decision was affirmed on review by the Veterans’ Review Board (VRB).  Subsequently to the VRB’s decision Mr Goodwin died as a result of the cancer. Ms Norton, as executrix of his estate, appealed under s 126 of the Veterans’ Entitlements Act 1986 (VEA) to the Administrative Appeals Tribunal (Tribunal). She appealed from the decision of the AAT to the Federal Court.

The Tribunal’s reasoning

The hypothesis put forward before the Tribunal that was said to raised by Mr Goodwin’s claim was that: (i) severe stressors related to his service, (ii) caused alcohol dependence or abuse which, (iii) caused the cirrhosis which, (iv) caused the liver cancer.  Steps (iii) and (iv) were not in dispute.

After referring to a number of medical reports, the Tribunal was unable to find in the reported histories the necessary DSM-IV-TR criteria for alcohol dependence and thus (found) that Mr Goodwin suffered from alcohol abuse.

The Tribunal then posed for itself the question whether the alcohol abuse "resulted from the objective/subjective effect of a severe stressor that might evoke intense fear ( Repatriation  Commission v Stoddart (2003) 134 FCR 392)".

The Tribunal noted that the SoP defined experiencing a severe stressor and considered that the inclusion of the word “might” in this definition lowered the standard of proof. The Tribunal said

[74]… The use of the term might in the Tribunal’s opinion shifts the weight in the assessment in the objective/subjective analyses (Stoddart) of claimed stressors toward  the subjective analysis; and in light of the psychiatric opinion, the Tribunal finds that the stressors described and in particular the bar theft accusation and search, do meet the SoP’s criteria…

The Court’s Consideration

The Federal Court held that the Tribunal had erred at stage 3 of Deledio by failing to form an opinion whether the alcohol hypothesis fitted or was consistent with SoP no 76 of 1998.

Justice Heerey noted that the diagnostic criteria for alcohol abuse, set out in clause 2(b) of the SoP required very specific manifestations. His Honour found that the Tribunal did not attempt to identify such manifestations in the material before it, nor did the Tribunal attempt to identify the date of clinical onset or clinical worsening of the alcohol abuse. As such, the Tribunal did not identify the necessary elements which the SoP required.

In addition, Justice Heerey found that the Tribunal had misunderstood the term “experiencing a severe stressor”. His Honour said:

[20] The construction which Full Court decisions have placed on this expression in the context of the SoP can be summarized as follows:

  1. The event must be one which (i) the person actually perceived as involving actual or threatened death or serious injury and (ii) which could reasonably be so perceived by someone with that person’s knowledge and experience. There are both subjective and objective elements: Repatriation Commission v Stoddart (2003) 134 FCR 392 at [22], [30].
  2. It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31].
  3. To be "confronted" with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission (2003) 131 FCR 473 at [123].
  4. "Risk" is used in the sense of "an indication of probable evil to come: something that gives indication of causing evil or harm": Stoddart at [36].

[21] The use of the word "might" has nothing to do with "shift(ing) the weight ... towards the subjective analysis". The word "might" accommodates the possibility that a person of particular fortitude might be confronted with an event involving, for example, threat of death, but does not react with "intense (or any) fear, helplessness or horror". Such a person would be, literally, fearless. Nevertheless, such an event might evoke the actual, and objectively reasonable, intense fear etc in an ordinary person. At the other extreme, the definition excludes an event which (objectively) does not have the possibility of evoking the reaction of intense fear etc. The definition thus sets out the limits within which the Stoddart subjective and objective tests are to be satisfied. The concluding part of the definition ("which event or events...") is setting out the objective criteria which the event must satisfy. Of course, the event must also be one which the person (subjectively) perceived as involving a threat of death etc and which a reasonable person could (objectively) so perceive.

Formal decision

Justice Heerey allowed the Commission’s appeal and remitted the matter to be heard by a differently constituted Tribunal.

Editorial Note

Chain of SoPs

If there is a SoP in force concerning the injury, disease or death that is the subject of the claim (in this case malignant neoplasm of the liver) as well as an SoP for an injury or disease (in this case alcohol abuse) that is said to have led to that injury, disease or death, then all the relevant SoPs must be met for the hypothesis to succeed: McKenna v Repatriation Commission [1999] FCA 323.

Meeting a factor in an SoP – clinical onset

Clause 5(b) of the alcohol abuse SoP no 76 of 1998 not only requires exposure to a “severe stressor”, it also requires clinical onset of alcohol abuse within two years of that exposure.

For a hypothesis to fit the template of the alcohol abuse SoP, the material before the decision maker must point to a person having manifested all of the requisite symptomology set out in the diagnostic criteria in the SoP within two years of his or her exposure to a severe stressor: Repatriation Commission v Lees (2002) 36 AAR 484.

This particular issue also arose recently in  Repatriation Commission v Brady [2007] FCA 1087. In Brady, the Federal Court emphasised that the time of clinical onset can be determined only if the relevant disease is first properly identified because the time of clinical onset depends on when the particular disease’s diagnostic criteria were first satisfied.

Experiencing a severe stressor

The Court’s decision in Norton recognises that the subjective element of the definition of “experiencing a sever stressor” incorporates the wide variety of human experience ie. a person of particular fortitude might be confronted with an event involving, for example, threat of death, but does not react with "intense (or any) fear, helplessness or horror”.

However, the decisionemphasises that the objective element of the definition must also be met. As Justice Heerey stated, “the definition excludes an event which (objectively) does not have the possibility of evoking the reaction of intense fear etc”. 

In order to satisfy the definition of experiencing a” severe stressor”, a person must demonstrate not only that that he or she perceived the event as involving a threat of death etc but that, when judged objectively, from the standpoint of a person with the knowledge and in the circumstances of the person, the event:

New SoPs for alcohol abuse or alcohol dependence 

It should be noted that the comments Justice Heerey made at paragraph 20 of the Court’s decision ( ie. To be "confronted" with the event the person does not necessarily have to be physically present: Woodward v  Repatriation Commission (2003) 131 FCR 473 at [123]) does not apply to          "a category 1B stressor" in the current SoPs concerning alcohol abuse or alcohol dependence no 17 and 18 of 2008.  The category 1B stressor factor requires the person to be an eyewitness, rather than merely being confronted with the event.

The SoPs define being an “eyewitness” as a person who observes an incident first hand and can give direct evidence of it.  The definition specifically excludes a person exposed only to media coverage of the incident.

Further reading: See VeRBosity 23 no 2 page 115 for report on Repatriation Commission v Brady.

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