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No3. March 2009

Hunter v Repatriation Commission

COURT Federal Court, Sydney
JUDGE Perram J
DATE OF DECISION 25 February 2010
DECISION Appeal allowed and parties to bring minutes of order
ISSUES SoP for Post Traumatic Stress Disorder – whether material before Tribunal supported hypothesis – whether physical confrontation required

Facts

The claim

Mr Hunter, served in the Royal Australian Navy between 26 May 1958 and 25 May 1979. The matter before the Federal Court concerned his claim for disability pension for Post Traumatic Stress Disorder (“PTSD”).  The Tribunal accepted that Mr Hunter suffered from PTSD but concluded that it was not related to the episodes of his naval service upon which he relied. 

The contended stressors

The stressors upon which Mr Hunter relied both occurred during 1965 and 1966 when Mr Hunter was serving on board the minesweeper HMAS Teal in waters adjacent to Malaysia, Brunei and Singapore during the confrontation which took place between Indonesia and Malaysia at that time. The first episode related to these circumstances surrounding patrolling at night; the second to damage inflicted upon another vessel, the HMS Woolaston, by a sampan which contained a bomb. Mr Hunter hypothesised that his PTSD was caused by one or both of these events.

Grounds of appeal

The thrust of Mr Hunter’s appeal related to an accrued right to rely on an earlier SoP for PTSD and he nominated the following question of law:

The Court’s consideration

Significant differences in the SoPs

Before considering whether the Tribunal had erred in its interpretation of the SoP no 3 of 1998 as amended by no 54 of 1999, Justice Perram made the observation that the SoP was defined in a materially different way to the current SoP which required a category 1A or 1B stressor. 

Justice Perram noted that the later SoP required the claimant to have come, in effect, face to face with some species of peril and it could be satisfied if a claimant were “confronted” with a peril. His Honour noted that the Federal Court has held that being “confronted” includes being confronted “in the mind”: Woodward v Repatriation Commission (2003) 131 FCR 473 at 495. Consequently, the two SoP’s significantly differed in that physical confrontation was required under one but not the other.

Tribunal did not consider any of the material dealing with “confrontation”

In his opinion, Justice Perram considered the Tribunal had overlooked the differences in the SoPs and thus had not turned its mind to the requirements of the earlier SoP. His Honour noted the evidence provided by Mr Hunter in relation to the stressors he relied upon, and considered that this was clearly capable of sustaining a view that Mr Hunter was confronted with a threat to his person in the Woodward sense. Further, his Honour considered that the Tribunal erred in law by failing to appreciate the inferences which could be drawn from the material which was before it. Justice Perram said:

[34]…It is quite obvious, I think, that the Tribunal did not consider any of the material dealing with “confrontation” with an actual death because it assumed, erroneously, that the requirements of the earlier SoP were the same as those of the later SoP.

Determining issues of credit

Justice Perram concluded by noting that the Tribunal had erred in failing to observe the material before it was capable of supporting a finding that Mr Hunter suffered an extreme stressor. As such, Mr Hunter was entitled to succeed on the appeal. However, his Honour went onto note that he was in no position to assess whether Mr Hunter did, in fact, suffer such a stressor:
 [40]…For example, the Tribunal may decline to accept his evidence about the occurrence of the incident at all. This is not a hypothetical possibility, for the Tribunal, in fact, rejected Mr Hunter’s account of another incident involving an Indonesian vessel. To determine matters of that kind it would be necessary to determine issues of credit which I am in no position to do.

Formal decision

Mr Hunter’s appeal was allowed and the parties were to bring orders giving effect to Justice Perram’s reasons outlined in the judgment.

Editorial Note

Accrued rights to SoPs

The decision in Hunter emphasises that decision makers at the Tribunal (and the Board) must apply the SoPs currently in force, but if the applicant cannot succeed under those SoPs, the applicant may have an accrued right to have the SoPs apply that were in force at the time of the decision under review: Repatriation Commission v Gorton [2001] FCA 1194.

 Section 341 of the MRCA expressly takes away any accrued right and requires the current SoP to apply in all instances.

 

Significant differences in the SoPs for PTSD

Justice Perram’s reasoning also highlights that the definition of a category 1A stressor is narrower than the definition of “experiencing a severe stressor” in the superseded SoP. 
While the decision in Hunter did not consider issues of diagnosis, it is interesting to note the implication that the narrowing of the definition of a category 1A stressor is at odds with criterion A of DSM-IV, which must be met in order to establish a diagnosis of PTSD. That is, while a person could be diagnosed with PSTD because he or she was “confronted” with an event that involved threat of death or serious injury, that no longer meets the definition of a category 1A stressor in the current SoPs, when considering the issue of causation.
An emerging issue in future cases dealing with the newer SoP may be whether the position that was taken in Mines case (ie. If a decision-maker must be reasonably satisfied that a traumatic event occurred and as such the veteran suffers PTSD - the reasonable hypothesis process of reasoning, and the four steps in Deledio hardly need to be considered) will now start to shift.

All Practice Notes