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Summers v Repatriation Commission

[2012] FCAFC 104

COURT Federal Court, Sydney
JUDGE GILMOUR, PERRAM & JAGOT JJ
DECISION The appeal was ALLOWED
ISSUES Whether Tribunal’s treatment of alcohol dependence erroneous

Facts

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.

Mr Summers appealed to the Federal Court from a decision of the Tribunal that reached the following conclusions:

  1. He was not suffering from PTSD
  2. He was suffering from alcohol dependence but this was not war caused.
  3. He was not entitled to special rate.

The Court dismissed the appeal. Mr Summers then appealed to the Full Federal Court.

Grounds of appeal and Court’s consideration

PTSD

The Court noted the debate in this case centred around the diagnostic criteria in the Statement of Principle concerning PTSD and the need for there to have been a traumatic incident and for Mr Summers to have a response involving fear, helplessness or horror. The Tribunal needed to be reasonably satisfied as to the occurrence of a traumatic event and of Mr Summers having a response involving feelings of fear, helplessness and horror.

The Court noted there were two ways in which these matters may have been found by the tribunal:

  1. the fall down the cliff was a traumatic event and that it had immediately provoked in Mr Summers a response involving feelings of fear, helplessness and horror
  2. the fall down the cliff was a traumatic event and that, when he regained consciousness in the hospital the following day( and perhaps in the days which followed), reflection on the devastating events which had befallen him provoked the requisite feelings of fear, helplessness or horror.

The Full Court concluded that even if the tribunal had looked at the issue in its reasons it would have found the material before it did not include any evidence from Mr Summers that he had a response consisting of feelings of fear, helplessness or horror in the aftermath.

The Full Court found there was no material error by the tribunal in reaching the conclusions it did on the issue of PTSD.

Alcohol dependence

The Tribunal reasoned that as Mr Summers had started drinking heavily in Vietnam the hypothesis of connection between two events which occurred while he was on operational service, the death of his father and the assault at Watson’s bay, was not upheld by the applicable statements of principle which required the relevant event to occur before the clinical onset of alcohol dependence.

In the notice of appeal to the Full Court it was contended that the primary judge misdirected himself by not holding that the tribunal erred” in failing to identify all of the hypotheses that were raised. In particular the hypothesis which connected the veteran’s service with aggravation of the veteran’s alcohol dependence following his father’s death.

The Full Court noted the Tribunal’s function remains an inquisitorial one and it is bound to determine an applicant’s case on the material before it and in doing so is obliged not to limit its determination to the case articulated by an applicant if the evidence and material raises a case not articulated by an applicant.

The Court noted there was no dispute that Mr Summers suffered from alcohol dependence. One critical question for the tribunal was whether the material pointed to Mr Summers having experienced the relevant class of stressor or experienced the death of a significant other within the five years before the clinical onset of alcohol dependence. As to the issue of clinical onset the primary judge concluded that the tribunal found as a fact that the applicant’s alcohol dependence commenced in Vietnam. The tribunal did so on the basis of one fact that it found that Mr Summers began drinking heavily soon after arriving in Vietnam.

The difficulty is that drinking heavily is indicative of not only alcohol dependence but also alcohol abuse. There is no indication in the tribunal’s reasons that it considered the different diagnostic criteria for alcohol abuse and alcohol dependence. The fact that Mr Summers drank excessively in Vietnam is not indicative of the clinical onset of alcohol dependence.

The material before the tribunal pointed to the clinical onset of alcohol abuse in Vietnam and alcohol dependence thereafter. The tribunal seems to have taken the evidence about Mr Summers heavy drinking in Vietnam as evidence of clinical onset of alcohol dependence.

The Full Court determined that, on the material, a case was raised that clinical onset of alcohol dependence occurred after Mr Summers returned to Australia and that Mr Summers experienced the death of a significant other and a category 1A stressor within the five years before the clinical onset of alcohol dependence.

Stressor

The tribunal’s reasons disclose that it equated the meaning of a category 1A stressor to the meaning of a traumatic event as set out in the Statement of Principles relevant to PTSD. The problem is that the definitions are different. The definition of a traumatic event involves both an event and a response to the event. The definition of a category 1A stressor says nothing about a required response. Mr Summers response to his assault in Watson’s Bay was irrelevant to the question of whether he experienced a category 1A stressor.

The Full Court found the tribunal erred in law on two bases:

  1. failing to consider diagnostic criteria for alcohol dependence as required by the applicable statement of principle SoP 1 of 2009, and thereby failing to determine as required by law whether the material pointed to the date of clinical onset of alcohol dependence as opposed to alcohol abuse
  2. taking into account an irrelevant consideration, being Mr Summers response to the Watson’s Bay assault and fall from the cliff, in determining whether he had experienced a category 1A stressor by reason of either or both his fall from the cliff.

The Court’s Decision

The appeal was allowed insofar as it dealt with the primary judge’s rejection of the grounds relating to Mr Summer’s alcohol dependence.

Editorial Note

The Tribunal erred in law because it found that the fact of drinking heavily in Vietnam equated to the clinical onset of alcohol dependence. As a result the clinical onset came before the stressor and the relevant SoP was not upheld. The Court noted the Tribunal was wrong to find clinical onset at this time. As in the recent case of Kaluza, the test for clinical onset is the one set out in Lees, it is either when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present or when a finding is made on investigation. In this case, it could be said the clinical onset of alcohol abuse was during operational service in Vietnam but not the clinical onset of alcohol dependence which came later.

This case also highlights the importance of distinguishing between definitions in diagnostic criteria and definitions as part of causation such as category 1A stressors. Most notably, in this case the Tribunal confused the diagnostic requirement of having a response to the traumatic event with the 1A stressor which does not require a response.

For further discussion on the definitions of stressors please refer to the practice notes in Border and Hunter.

All Practice Notes