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Summers v Repatriation Commission

[2011] FCA 1451

COURT Federal Court, Melbourne
JUDGE North J
DECISION The appeal dismissed
ISSUES Whether the applicant suffers from PTSD and whether alcohol dependence is war caused

Facts

Before the Court was an appeal from a decision of the Administrative Appeals Tribunal dated 20 October 2010. The Tribunal affirmed a decision of the Veterans’ Review Board, which in turn affirmed a decision of the Repatriation Commission.

The applicant served in the Australian Army from 12 July 1967 to 11 July 1969. He experienced operational service in South Vietnam from 23 June 1968 until 14 October 1968. In Vietnam, the applicant was stationed at Vung Tau and operated the Other Ranks canteen. After three and a half months, the applicant’s father died and the applicant returned to Melbourne. After attending his father’s funeral in Melbourne, the applicant was sent to Sydney in preparation for his return to Vietnam. While in Sydney, the applicant was involved in an altercation with a group of sailors near Watson’s Bay which resulted in him falling over a cliff.

Grounds of appeal

  1. The Tribunal erred in failing to properly consider the possibility that the veteran suffered from post traumatic stress syndrome.
  2. The Tribunal wrongly failed to consider whether there was a reasonable hypothesis connecting PTSD with the applicant’s service.
  3. The Tribunal’s reasons were inadequate in that they did not explain why the Tribunal reached the conclusion that the applicant did not experience, witness or was not confronted with an event involving actual or threatened death or serious injury, …, as is required in the definition of PTSD.
  4. The Tribunal failed to consider whether the Applicant suffered PTSD as a result of having been notified of the death of his father.
  5. The Tribunal failed to identify the death of the applicant’s father as a reasonable hypothesis to link the applicant’s service to his alcohol dependence.

The Court’s Consideration

The first complaint, namely, that the Tribunal came to a decision which was so unreasonable that a reasonable Tribunal could not have arrived at it, has not been made out.
The hurdle for establishing such a ground is high.

The Tribunal set out the evidence relevant to the question whether the applicant suffered PTSD as a result of the Watson’s Bay incident. It analysed the evidence from the applicant and from four psychiatrists and summarised the evidence of those psychiatrists. The Tribunal made an assessment of this medical evidence. The Tribunal took a rational approach by looking to the only objective report of the incident which was by the investigating officer. In view of the fact the applicant only had a vague memory of events on the night, the Tribunal concluded that the Watson’s bay event did not constitute a traumatic event and the applicant did not have the required response involving intense fear.

The finding that there was no recollection of the assault or the accidental fall, meant that the first part of the definition of PTSD could not have been satisfied because the applicant did not experience, witness, or was confronted with an event that involved the actual or threatened death as required.

Once it is accepted that the Tribunal made no error in concluding that he did not suffer from PTSD it did not need to consider whether there was a reasonable hypotheses connecting the PTSD with service and the second and fourth grounds of appeal fall away.

The third complaint cannot be accepted. The Tribunal set out evidence given by each psychiatrist. It had to choose between contending views. The Tribunal explained that it relied upon the applicant’s lack of recollection as supportive of the view that there was insufficient information to substantiate the claim the applicant had experienced a traumatic event.

The final ground is that the Tribunal failed to address whether the notification of the death of the applicant’s father was a factor. It can hardly be an error of the Tribunal to deal with a claim not made.

Decision

Appeal dismissed.

Editorial Note

This decision serves as a good reminder that a preliminary matter for decision makers to decide, on the balance of probabilities, is the diagnosis of the injury or disease that the veteran or member has claimed to be related to his or her eligible service.

A claim for Post Traumatic Stress Disorder is unusual, in that the diagnostic criteria in DSM IV has a criterion of causality contained in criteria A.

The decision maker must determine whether the person was exposed to a stressor and responded to it as defined in DSM IV.

If diagnostic criteria A is satisfied, a decision maker must then also consider it the evidence discloses that the veteran or member also satisfies Criterion B, C, D, E and F of DSM-IV.

All Practice Notes