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No.12 November 2010

McKerlie v Repatriation Commission

COURT Federal Court, Adelaide
JUDGE Besanko J
DECISION Appeal allowed
ISSUES Claim for PTSD – standard of proof to be applied in deciding whether the applicant has PTSD – whether the Tribunal was obliged to consider whether the symptoms claimed by the applicant existed and could amount to some disease other than PTSD


The applicant served in the Royal Australian Navy and rendered operational service, during two periods in 1971 in South Vietnamese waters. He lodged a claim for “post-traumatic stress disorder-alcohol dependency”, ischaemic heart disease and hypertension. A delegate of the Repatriation Commission (the Commission) had determined, as did the Veterans’ Review Board (VRB) that these conditions were not war-caused. Mr McKerlie appealed the decision to the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the Commission’s decision and Mr McKerlie appealed to the Federal Court.                                                               

The Tribunal’s reasoning

The discrete issue before the VRB and the Tribunal concerned whether HMAS Swan (“Swan”) anchored in Vung Tau Harbour on 8 December 1971. The Tribunal accepted that the issue was critical as the anchoring was “intricately involved” in the asserted stressor, which founded the claim for acceptance of a PTSD.

In relation to the incident Mr McKerlie contended that, on the relevant day, the Swan had dropped anchor and he was alerted to bubbles emanating from around the anchor line. He had been the first diver to enter the water alongside the anchor chain to investigate the source of the bubbles. It was asserted that when he was approximately three feet under water, he felt a force which he momentarily considered may have been an attack from an enemy diver. He then concluded that the force had come from above and was the force of another of the Swan’s divers falling on top of him.

The Tribunal heard evidence from a number of witnesses. It accepted the evidence that the Swan did not anchor in Vung Tau Harbour on 8 December 1971. Consequently, the Tribunal found that it was not satisfied that the applicant suffered from  PTSD. The diagnostic criteria recorded in DSM IV clearly required the experience of a severe stressor and there was no other stressor asserted, apart from the Swan incident, before the Tribunal.

Grounds of appeal

Mr McKerlie put forward the following grounds of appeal:

The Court’s Consideration

Standard of proof to be applied to issues of diagnosis

The applicant was not successful on the first ground of appeal. Mr McKerlie accepted that it must be established that both the symptoms of the disease and a severe stressor were present. Further, that the standard of proof to be applied to the determination of those issues was the reasonable satisfaction of the decision-maker.

Justice Besanko did not consider the issues raised by the second ground of appeal. His Honour noted that it was put forward defensively by the applicant in the sense that it only arose if the respondent relied on an alternative basis to uphold the decision.

In relation to the third ground of appeal, Justice Besanko considered it was incumbent on the Tribunal to consider whether the symptoms from which the applicant suffered constituted a disease and, if so, whether the disease was war-caused. His Honour referred to Benjamin, which was raised by the applicant’s counsel, in support of the argument that the Tribunal must consider and determine “the substantive issues raised by the material and evidence advanced before it” (at 633 [47]). In discharging its obligation, Justice Besanko considered that the Tribunal could have made a decision as to the appropriate diagnosis (other than PTSD) or it could have invited the parties to call medical evidence on the issue. His Honour held that the Tribunal’s failure to perform its obligation, in this respect, was an error of law.

Further, Justice Besanko went onto note that the Tribunal was under an obligation to reach the correct or preferable decision on the material before it (see: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577). As such, His Honour noted that a review by the Tribunal is inquisitorial and that the Tribunal must not confine itself to a case expressly articulated by the applicant. It must consider all substantive issues arising on the material and advanced before it.

Justice Besanko concluded by noting that, in addition to determining the case expressly articulated by the applicant, the Tribunal was bound to consider and determine if the applicant suffered from the symptoms of which he complained and whether those symptoms constituted a disease within the VEA. If they did, the Tribunal was bound to undertake the process identified in Deledio. The Tribunal’s failure to do these things, although it may be explained by the approach adopted by the parties, was an error of law.

Formal decision

Mr McKerlie’s appeal was allowed. 

Editorial Note

This case reinforces, that a preliminary matter for decision makers to decide, on the balance of probabilities, is the diagnosis of the injury or disease claimed. As His Honour emphasised in McKerlie, decision makers, in this case the Tribunal, have an independent responsibility to decide that matter before considering whether the claimed condition was related to service. See further: Repatriation Commission v Budworth [2001] FCA 1421, (2001) 33 AAR 476, 66 ALD 285; Benjamin v Repatriation Commission [2001] FCA 1879, (2001) 34 AAR 270, 70 ALD 622.

It is important to note that the range of injuries or diseases a decision maker must consider is determined by what the veteran or member included in the claim form: see further  Owen v Repatriation Commission (1995) 38 ALD 241.

McKerlie also serves as a good reminder, that in matters involving a claim for PTSD, the diagnostic criteria requires identification of a causal factor. As Justice Besanko emphasised, the standard of proof to be applied in deciding whether both the symptoms of the disease and a ‘severe stressor’ are present is the reasonable satisfaction. If a decision maker is not reasonably satisfied that the diagnostic criteria for PTSD has been met, he or she must consider evidence for some other diagnosis to account for the person’s symptoms.

All Practice Notes