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Repatriation Commission v Bawden

[2012] FCAFC 176

COURT Federal Court, Melbourne
JUDGE Keane CJ, Jacobson & Bennett JJ
DECISION The appeal was ALLOWED
ISSUES Whether  the primary judge erred in holding that diagnosis of PTSD does not require the decision maker to be satisfied on the balance of probabilities that the veteran suffered the traumatic event

Facts

Mr Bawden made a claim in respect of incapacity from post traumatic stress disorder, the diagnosis of which includes the occurrence of a traumatic event.
The traumatic event contended by Mr Bawden in support of his claim was an incident which each the Commission, Veterans’ Review Board and the Administrative appeals Tribunal were not satisfied constituted a traumatic event. On that basis Mr Bawden’s claim for incapacity was refused by each of those decision makers.

On appeal to the Federal Court the primary judge considered that the Tribunal should not have proceeded to a conclusion that it was not satisfied that the traumatic event identified by Mr Bawden occurred because the question whether the traumatic event occurred was concerned, not with diagnosis of an illness or disease, but with the causal nexus between the injury or disease and war service.

The primary judge also concluded that the decision of the Tribunal involved an error of law in its approach to the determination of whether there was a causal connection between Mr Bawden’s operational service and his psychological conditions other than PTSD. The Commission accepted that part of the primary judge’s decision to be correct and appealed only that part of the decision that included the setting aside of the Tribunal’s decision that it was not satisfied Mr Bawden  suffered from PTSD.

Full Federal Court’s consideration

Primary Judge’s reasoning

The Full Court noted the primary judge gave two reasons for concluding that the Tribunal had erred in law in determining on the balance of probabilities whether the traumatic event that Mr Bawden relied had occurred.

Firstly the primary judge considered the underlying policy of s120 of the Act, and  that the standard of satisfaction for determining whether there is a causal connection between a disease and war service differs between service that is operational and service that is not. The primary judge explained that if the determination as to whether a particular traumatic event occurred were to be transferred to the step of determining causation from the step of diagnosing then the issue of causation for a veteran who has rendered operational service would be addressed no differently from a veteran who has rendered operational service.

Secondly the primary judge considered that determining causation as part of the diagnosis would lead to anomalies. His Honour said at [22]:

For instance, a veteran with symptoms amounting to PTSD, possibly caused by one of two traumatic events, one associated with the veterans’ operational service and the other not, would be in a better position than a veteran with symptoms amounting to PTSD who points only to one alleged traumatic event as the cause.  The decision-maker might find on the balance of probabilities that the former veteran was suffering PTSD, without making a finding as to which of the two traumatic events was the actual cause, but might find on the balance of probabilities that the latter veteran did not suffer from PTSD.  The former veteran would then be entitled to have the question of causation (ie which of the two traumatic events was to be regarded as the actual cause) determined by the four-step process in accordance with ss 120(3) and 120A(3) of the Veterans’ Entitlements Act.  The latter veteran would have been denied access to that process. 

Full Court consideration

The Full Court considered s120(1) of the Act has been authoritatively interpreted as assuming the existence of “ incapacity from injury or disease” as a matter of established fact rather than as a matter  of claim by the veteran.  The Court noted the contextual support for that interpretation in s120(3) of the act, which is expressly concerned only with the issue of causal nexus between incapacity from injury or disease and operational service leaving the issue as to the fact of incapacity from  injury or disease to be resolved in accordance with the provisions of s120(4).

The Full Court stated it was their respectful opinion that the effect of the settled course of judicial authority is that a veteran is entitled to have that aspect of a claim for PTSD concerned with whether it was war caused dealt with in accordance with the four step process explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR only if it is established on the balance of probabilities that the veteran does in fact suffer from incapacity from that injury or disease: Budworth(2001) 116 FCR 200 at [19].

The Full Court stated at [42 & 43]

 the obligation of the decision maker was to determine Mr Bawden’s claim by reference to an allegation of PTSD. Diagnosis is a process which necessarily involves examining a collection of symptoms in order to identify a disease on accordance with diagnostic criteria.

A decision maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “ reasonable satisfaction” set by s120(4), they constitute a disease for the purposes of entitling a veteran to a pension.

The decision maker’s second task is to determine the cause of the disease by applying the Deledio process.

The Full Court also stated that while a veteran must establish on the balance of probabilities that he or she suffers from incapacity from injury or disease the veteran is not obliged to attach a label to the injury or the disease from which the claimed capacity is alleged to result. However, where the disease is asserted to be PTSD, the issue arising from that is to be determined under s120(4) of the Act because it is not a determination to which s120(1) applies. That is because a traumatic event is necessary for a diagnosis of PTSD at a medical level.

PTSD can only be diagnosed as an illness or a disease in terms of a traumatic event.

The Full Court considered the reasons given by the primary judge for adopting his approach were not sufficiently compelling to overcome the settled course of interpretation. Both the reasons given by the primary judge involve the idea that whether a traumatic event has occurred is concerned with the issue of causal nexus with war service rather than diagnosis. The Full Court noted in their opinion this is not so. A finding that a traumatic event has occurred is indispensable to a diagnosis of PTSD.  The Full Court went further to say at [ 49]:

“ one should be slow to attribute to the legislature an intention that incapacity from an alleged illness which the decision maker does not accept occurred at all is nevertheless compensable because it cannot be proven beyond reasonable doubt that it did not occur”

For the above reasons the Full Court concluded the tribunal made no error of law in concluding that PTSD could not be diagnosed where it was not satisfied that Mr Bawden’s symptoms were associated with the sampam incident.

The Court’s Decision

That the primary judge erred in holding that the diagnosis of PTSD was to be determined otherwise than in accordance with s120(4).

All Practice Notes