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No.16 December 2010

Border v Repatriation Commission (No 2)

[2010] FCA 1430

TRIBUNAL Federal Court, Brisbane
MEMBERS Reeves J
DECISION Appeal allowed
ISSUES PTSD - whether the Tribunal correctly undertook the third step outlined in Deledio - whether the veteran experienced a "life threatening event" - Tribunal did not make objective subjective assessment

Facts

Mr Border served in the Australian Army from 1967 until 1987 and rendered one period of “operational service” in Vietnam during 1971. Some time after he retired from the army, Mr Border developed post traumatic stress disorder (PTSD).

Mr Border applied for disability pension for PTSD. After adverse decisions by the Repatriation Commission, the Veterans’ Review Board, and the Administrative Appeals Tribunal (Tribunal), Mr Border appealed to the Federal Court on a question of law.

Questions of law raised on appeal

A preliminary application to strike out the appeal was dismissed by the Court, and leave was given to amend the notice of appeal. The questions of law were:

Before the Tribunal, Mr Border claimed there were four events which occurred during his Vietnam service that either individually, or collectively, contributed to the development of his PTSD:

On appeal, Mr Border’s case was that the Tribunal erred at step three of the Deledio process by making factual findings that none of the four events above, either individually or collectively, amounted to a “life threatening event” - which is included in the definition of a “category 1A stressor” in the relevant Statement of Principles (SoP).

The Court’s Consideration

Initially the Court considered what is required at the third step in the Deledio process. Following an analysis of the relevant case law the Court stated:

…first, the Tribunal has to test the veteran’s hypothesis to determine whether the material before it points to facts which support it. Then, since 1994 when the SOP regime was introduced into the Act, the reasonableness of a veteran’s hypothesis has to be determined by whether it fits into, or is consistent with, or is upheld by, the template to be found in the relevant SOP. The hypothesis will do this if it contains, as a minimum, one or more of the factors specified in the relevant SOP template. If it does, that carries with it the necessary causal connection between the injury, disease or death with the veteran’s service.

The Court noted that the Tribunal followed the test in Stoddart, however the Court pointed out two key differences between Stoddart and the present case which the Tribunal failed to identify. Firstly, Stoddart was dealing with step four in the Deledio process (not step three), and secondly, the expression being considered in Stoddart was “experiencing a severe stressor” (not “experiencing a category 1A stressor”).

The Court went on to examine the significant differences in these two sets of definitions with reference to the relevant authorities, and considered the correct approach in relation to the event described in subpara (a) of the definition of a category 1A stressor (“experiencing a life-threatening event”) was as follows:

[It is] The effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the treat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.

The Court indicated that while the Tribunal correctly identified the appropriate objective subjective test in Stoddart, it misquoted the test so that the subject matter of the assessment became the threat itself, rather than the event giving rise to it. The Court considered the Tribunal fell into error when it came to apply the test to each of the four events in Mr Border’s hypothesis as:

…it assessed three of the events partly by reference to objective circumstances that either post-dated the event, or were unknown to Mr Border at the time. At the same time, I consider it did not properly assess the objective reasonableness of Mr Border’s perception of the event as life-threatening based upon his circumstances and state of knowledge at the time.

Formal decision

Justice Reeves allowed the appeal and remitted the matter to the Tribunal to be reconsidered and determined according to law.

Editorial note

Decision-makers should be mindful that the objective subjective test only applies to subpara (a) of the definition of a category 1A stressor - “experiencing a life-threatening event”.

It was the Court’s view that there is no subjective element involved in determining whether a veteran’s hypothesis fits within, or is consistent with, one or more of the events described in subparas (b) or (c) of the definition, which focus on the inherent nature of the event concerned:

(b) being subject to a serious physical attack or assault including rape and sexual molestation; or

(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.

All Practice Notes