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Bawden v Repatriation Commission

[2012] FCA 345

COURT Federal Court, Melbourne
JUDGE GRAY J
DECISION The appeal was ALLOWED
ISSUES Whether  a finding as to the occurrence of a traumatic event belongs to that preliminary step or to the later process of determining the causal connection between PTSD and war service

Facts

Mr Bawden served in the Royal Australian Navy between 8 January 1964 and 7 January 1976. His service included nine voyages to Vietnam on HMAS Sydney between 1967 to 1969. The Commission rejected Mr Bawden’s claims for PTSD, alcohol abuse and depressive disorder.

On appeal the Tribunal determined that Mr Bawden did not suffer from PTSD. It therefore had no occasion to consider whether PTSD was war caused. The Tribunal then determined that Mr Bawden suffered from alcohol dependence and from depressive disorder. It proceeded to determine that neither of these conditions were war caused. Mr Bawden appealed to the federal Court.

The Court’s consideration

Claim for PTSD

The Court noted that problems have arisen in cases in which the diagnostic criteria applied by decision makers in determining whether the veteran has a disease involve reference to particular causes of such a disease.

Should the decision maker, as part of the diagnosis process, determine on the balance of probabilities whether the causal event occurred, or should that determination be left to the four step process set out in Deledio? This was discussed by the Court at length in Mines v Repatriation Commission. The Court concluded that a veteran is entitled to have the causal aspect of a claim for PTSD dealt with in accordance with the four step process. Such a claim is not to be precluded by a finding that the decision maker is not satisfied on the balance of probabilities that the traumatic event occurred, made at the initial stage of diagnosis.

The clear policy underlying s120 of the VEA is that practical difficulties of establishing causation in respect of a condition from which the veteran might be suffering are such that a veteran who has rendered operational service is entitled to succeed unless the decision maker is satisfied beyond reasonable doubt that the alleged causal connection does not exist. If the determination as to whether a particular traumatic event occurred is transferred from the process of determining causation to the process of diagnosing the veterans’ condition, then a veteran who has rendered operational service will be treated no differently as to causation from a veteran who has not rendered operational service.

The Court noted the proper approach of the decision maker is to examine a claim for PTSD without determining conclusively whether the alleged causal event occurred. The correct approach is the one taken in Budworth, examining the collection of symptoms and determining whether they constitute a disease. The question of aetiology of the disease should be left to the four step process in accordance with ss120(3) and 120A(3) of the VEA.

In Mr Bawden’s  case the tribunal concluded:

In view of its findings on the sampan event, the tribunal is reasonably satisfied Mr Bawden was not exposed to an event that could be described as traumatic as is required for a diagnosis of PTSD, and the tribunal concludes Mr Bawden does not suffer from PTSD, so there is no need to determine whether this condition is war caused.

The Court found the tribunal in reasoning in this fashion had erred in law. It had transferred the question of whether there was a causal connection between the sampan incident and the claimed condition of PTSD from the four step causation process to the diagnosis process. Having done so, it dealt with the question of causation according to the reasonable satisfaction standard. It diverted itself from the consideration of whether those symptoms were capable of amounting to PTSD.

Claim for alcohol abuse, alcohol dependence and depressive disorder

The tribunal directed itself to the question of whether Mr Bawden suffered from any psychological condition other than PTSD. In this respect it acted correctly in not attempting as part of the process of diagnosis to deal with the question whether those conditions were related to Mr Bawden’s operational service by having resulted from his experience of the sampan incident.

The tribunal recognised that it had to determine causation questions by applying the beyond reasonable doubt standard.

However, despite the tribunal’s protestations that “ in relation to the third step from Deledio the tribunal is not making any finding of fact”, The tribunal did make findings of fact, it made a specific finding that by the time of his operational service, Mr Bawden already had an established pattern of heavy drinking with a clinical onset in 1965. This was far removed from the deledio process. A finding that the material points to a hypothesis required by the first step in that process cannot involve findings as to when events occur. A hypothesis that located the clinical onset at a time prior to the sampan incident. The tribunal had no business in determining that a hypothesis involving those facts was demonstrated by the material. The tribunal ought to have addressed itself to the hypothesis that it was a sampan incident that led to onset of heavy drinking and therefore t his alcohol dependence. The tribunal needed to determine whether the material raised that hypothesis.

Decision

Appeal allowed

Editorial Note

In Bawden, Justice Gray appears to have qualified his view in Mines case.

To recap, in Mines case, Justice Gray held that if a decision maker was reasonably satisfied that the claimed traumatic event did not occur - then a diagnosis of PTSD could not be made. His Honour said at para 48:

"...the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered…"

The key issues in Bawden related to:

At para 20 of his decision, Justice Gray summarised the combination of these issues as, "...Problems have arisen in cases in which the diagnostic criteria applied by decision-makers in determining whether the veteran has a disease involve reference to particular causes of such a disease. Should the decision-maker, as part of the diagnosis process, determine on the balance of probabilities whether the causal event occurred, or should that determination be left to the four-step process set out in Deledio?..."

In Bawden Justice Gray concluded that the proper approach for the decision maker, is to examine a claim for PTSD (or any other condition for which causation is said to be part of the diagnosis) without determining conclusively whether the alleged causal event occurred. The question of the aetiology of the disease should be left to the four-step process in accordance with ss 120(3) and 120A(3) of the Veterans’ Entitlements Act.

Justice Gray appears to have qualified his view in Mines case (despite this being a well established Federal Court authority) that in terms of a diagnosis of PTSD, a decision maker must consider whether the required symptoms resulted from the alleged traumatic event, but must not determine conclusively whether the alleged causal event occurred.

There is a clear tension between Justice Gray's decision in Bawden and his earlier decision in Mines case. The decision in Bawden does not go so far as to provide an authority for removing the ‘reasonable satisfaction’ standard of proof when determining diagnosis in PTSD cases. However, the decision now leaves a well established interpretation of the VEA unsettled.

All Practice Notes