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2009

Renton v Repatriation Commission

[2009] FCA 268

COURT Federal Court, Brisbane
JUDGE Dowsett J
DECISION The appeal was allowed.
ISSUES Whether applicant experienced a severe stressor.

Facts

Mr Renton served in the Australian Army from 5 March 1968 until 2 December 1970. He rendered operational service in Vietnam from 4 June until 24 September 1970. He made a claim unsuccessfully for an anxiety condition and alcohol dependence. The Veterans Review Board (VRB) accepted the applicant’s anxiety condition was war-caused but affirmed the Repatriation Commission’s decision to reject the claim in respect of alcohol dependence. He sought further review by the Administrative Appeals Tribunal (Tribunal).  The Tribunal upheld the VRB’s decision. Mr Renton appealed to the Federal Court.

The Tribunal’s reasoning

The parties agreed before the Tribunal the Mr Renton suffered from alcohol dependence and the Tribunal accepted the medical evidence to that effect. Mr Renton was a radio keyboard operator in Saigon. In relation to his claim, he put forward two stressors, handling casualty figures and a shooting incident in Saigon.

In relation to the handling casualty figures stressor, the Tribunal was not satisfied the events described by Mr Renton satisfied the definition of severe stressor in the SoP. Specifically, the Tribunal indicated that a person with the background and experience of the applicant – even one with a relative who had been hurt in the past – would not have regarded the experience of reading the casualty lists as a severe stressor of a kind or magnitude of the other examples given in the definition.

In relation to the shooting incident, the Tribunal considered that the events described by Mr Renton were implausible. Specifically, the Tribunal noted that there was no other evidence to corroborate the applicant’s account. The Tribunal was not satisfied the incident occurred.

The Tribunal also considered Factor 5(a) - experiencing a psychiatric condition at the time of the clinical onset of alcohol dependence, and factor 5(c) - suffering a psychiatric disorder at the time of the clinical worsening of the condition. The Tribunal considered that the evidence pointed to the maladaptive pattern of alcohol use being firmly in place long before the date of onset of the anxiety condition. There was no evidence of an aggravation of the condition within the period contemplated by the SoP.

Grounds of appeal

Mr Renton raised three questions of law. These included:

The Court’s Consideration

First ground of appeal - Section 119(1)(h) of the VEA

Justice Dowsett considered that section 119(1)(h) of the VEA requires the decision maker to take into account “difficulties” which lie in the way of ascertaining the existence of any fact, matter, cause or circumstance. Such difficulties include the passage of time and the effects thereof, and any shortcomings in relevant official records, including those resulting from failure to report an occurrence.  In this case, his Honour considered that no relevant “difficulties” were identified:

In effect, the applicant submits that s119(1)(h) should be construed as requiring the Tribunal to accept the applicant’s claims simply because he has made them. That is not the correct approach to the section. See Fenner v Repatriation Commission (2005) 218 ALR 122 at [26]-[29]. There is nothing in this ground of appeal.

Second ground of appeal - Definition of “experiencing a severe stressor”

In relation to the ‘handling casualty figures’ stressor, Justice Dowsett considered that the Tribunal did not fully understand the definition of the words “experiencing a severe stressor”.  His Honour considered that reading the casualty lists may have amounted to the applicant experiencing, witnessing or being confronted by 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 invoke intense fear helplessness or horror.” The Court’s finding in this respect was contrary to the Commission’s submission that this ground of appeal was really an attack on a finding of fact.

Justice Dowsett went on to consider that, the applicant’s evidence that he felt no particular reaction to the lists (other than relief), might at the fourth step of Deledio, lead to a rejection of the applicants claim. However:

…that process should not be allowed to impinge on step three. I consider that the Tribunal did not consider the relevant question in dealing with the applicant’s handling of the causality lists as a potential stressor.

His Honour further noted that the Tribunal had not paid attention to the three specific categories of experience identified as severe stressors in the second part of the definition.  His Honour also made reference to Repatriation Commission v Constable (2006) 151 FRC 391 at [42] -[50] noting that the Full Court held that an experience falling within any of these categories will be a severe stressor.

Third ground of appeal – SoP for alcohol dependence or abuse

In respect of factor 5(a) of the SoP, Justice Dowsett noted that the Tribunal clearly considered that the applicant’s evidence was not reliable because of the passage of time and the effects of his alcohol dependence and anxiety condition. His Honour said:

Given the Tribunal’s adverse view of the applicant as a witness, there was evidence from which it could infer that the applicant’s alcohol dependence pre dated his arrival in Vietnam. Given that factual finding, his alcohol pre dated his anxiety condition. That condition therefore cannot satisfy para 5(a) of the SoP.

In relation to the “inability to obtain appropriate clinical management factor”, Justice Dowsett noted that there was no evidence of any aggravation or contribution. That was a finding of fact.

Formal decision

Justice Dowsett allowed Mr Renton’s appeal on the ground that the Tribunal had misunderstood the SoP as applied to the applicant’s handling of casualty lists.

Editorial Note

Section 119 of the VEA

Section 119 of the VEA has been discussed in a number of cases.The Court’s comments in Renton follow the line of authority from a number of cases, in which the court has said that section 119 of the VEA does not remove, from the decision maker, the responsibility of applying ss 120 and 120A and other relevant provisions of the VEA according to the proper terms. The provision cannot be used to fill substantial evidentiary gaps, or to take a more benevolent view of the applicant’s case than a decision maker would otherwise have taken: see Grundman v Repatriation Commission [2001] FCA 892 at [33]; Dunlop v Repatriation Commission  [2002] FCA 1400 at [52]; and Mason v Repatriation Commission [2000] FCA 1409 at [75] to [76].

An “event” and the definition of “experiencing a severe stressor”

The SoP concerning alcohol dependence or alcohol abuse defined ‘experiencing a severe stressor’ as:

… 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…

The court considered that even if actual events were not identified on the casualty lists, having repeated exposure to casualty lists themselves may well have involved the applicant being confronted with an event for the purposes of the definition in the SoP.

While the current SoPs concerning alcohol dependence (no 1 & 2 of 2009) no longer contain the “experiencing a severe stressor” definition they refer to “a category 1A stressor" and “a category 1B stressor”, both of which refer to “severe traumatic events”.  While a category 1A stressor refers to experiencing a life-threatening event, category 1 B refers to a person being an eyewitness to a person being killed or critically injured; or viewing corpses or critically injured casualties as an eyewitness. An eyewitness is defined in the SoP to mean a person who observes an incident first hand and can give direct evidence of it.  It excludes a person exposed only to media coverage of the incident.

Deledio steps

In Renton, the Court considered that the applicant’s evidence that he felt no particular response other than “concern” and “relief” upon discovering his brother and cousin were not on the casualty list, should not be allowed to impinge upon step three of Deledio.  Arguably, this could indicate that reactions of “concern” and “relief” are particular responses capable of pointing to this element of the SoP definition being met.  Nonetheless, the Court indicated that the applicant’s evidence, in conjunction with medical evidence, might, at the fourth step of Deledio lead to the rejection of the applicant’s claim.

All Practice Notes