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Rayson v Repatriation Commission

[2012] FCA 345

COURT Federal Court, Melbourne
JUDGE BROMBERG J
DECISION The appeal was DISMISSED
ISSUES Whether  the Tribunal applied the wrong standard of proof  for diagnosis of PTSD

Facts

The veteran served in the Royal Australian Navy. His operational service included two tours of duty in North Korea during the Korean War. Whilst on operational service and serving on HMAS Tobruk, the veteran experienced  three events of significance to his claim that he was incapacitated from Post Traumatic Stress Disorder and from Depressive Disorder. The first incident relied upon the veteran being locked in a refrigerator. The second, occurred at night when the Tobruk was illuminated  by shells intended to illuminate its land based target but fell short and illuminated the Tobruk. The third incident related to the veteran witnessing the destruction of a sampan involving the death of or serious injury to, those on board.

The late veteran lodged a claim for pension with the Repatriation Commission which was refused. That decision was then affirmed by the Veterans’ Review Board. The veteran then applied to the Administrative Appeals Tribunal. The Tribunal affirmed the decision and the applicant brought proceedings to the federal court.

Grounds of appeal

  1. Was the Tribunal wrong to find that the veteran did not suffer from PTSD?
  2. Did the Tribunal apply the wrong standard of proof for PTSD?
  3. Did the Tribunal fail to identify and consider all available hypotheses for connecting the veteran’s major depressive disorder to his war service?

The Court’s consideration

The Tribunal noted two basic inquiries to be made when determining whether a person has PTSD. The first concerns whether the person was exposed to a sufficiently traumatic event. The second looks to whether the exposure to trauma has been manifested in the recognised symptoms for PTSD.  On a fair reading of the Tribunal’s decision as a whole, it is apparent that the focus of the Tribunal’s refusal to make a finding of PTSD was an absence of the requisite symptoms for a diagnosis of PTSD. The challenge made by the applicant is insufficient in scope to establish that the ultimate finding was erroneous, let alone that it involved an error of law.

Which standard of proof applies to PTSD

The applicant contended that PTSD was to be determined by the application of the S120(1) standard of proof and not on the basis of the standard laid down by s120(4).

The Court said this contention was misconceived and contrary to Full Court authority.

The Court noted that the applicant’s approach misconceives the subject matter dealt with by s120(1) and the basis upon which the first of the Deledio steps is founded. The Court went on to quote Gray J in Mines v Repatriation Commission:

At the outset, one point needs to be understood. The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and finding that the veteran concerned rendered operational service. The first step is to indentify whether the material points to a reasonable hypothesis connecting one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.

The Court went further and noted what the Full Court said in Benjamin v RepatriationCommission(following the authority of Repatriation Commission v Budworth):

Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war caused. When the Commission, or the Tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision maker, in accordance with s120(4).

The Court again noted Gray J in Mines:

It should be noted that Benjamin was a case involving a suggestion that the veteran suffered from PTSD. The Full Court noted the tribunal had applied the correct standard by concluding that it was not reasonably satisfied that the veteran was suffering from PTSD

It is therefore clear that the question whether the veteran is suffering or has suffered a claimed injury must be determined to the reasonable satisfaction of the decision maker, that is on the balance of probabilities.

The Court noted the Full court authorities to  which it referred and to which Gray J relied and emphasised they are on point and binding. The ground of appeal was rejected.

The Court also found that as the Tribunal made a finding that the veteran did not suffer from PTSD there was no error in law involved in not considering a factor in the applicable SoP.

Decision

Appeal dismissed

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