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Simos v Repatriation Commission

[2013] FCA 607

COURT Federal Court, Melbourne
JUDGE Tracey J
DECISION The appeal was allowed
ISSUES Whether the Tribunal erred in finding the material did not point to life threatening event during military service of appellant- whether Tribunal misdirected itself as to what constitutes an ‘ objectively reasonable perception- whether tribunal failed to determine the meaning of ‘ viewing corpses or critically injured casualties as an eye witness- whether tribunal failed to give adequate reasons for rejecting certain contentions advanced by expert witnesses

Facts

Mr Simos applied for a disability pension on the grounds he was suffering from a psychiatric disorder, alcohol abuse or dependence, hypertension, atrial fibrillation and asthma and that these conditions were related to his operational service in Vietnam. The claim was rejected by the Repatriation Commission, affirmed on review by the VRB and the AAT.

Mr Simos appealed to the Federal Court.

Grounds of appeal

  1. The Tribunal had erred by finding the material before it did not point to there having been any life threatening event during military service.
  2. Misdirecting itself as to what constitutes an objectively reasonable perception that an incident was life threatening.
  3. Failing to determine what was meant by the expression “viewing corpses or critically injured casualties as an eyewitness”
  4. Failing to disclose any adequate reasons for rejecting the construction of the expression “viewing corpses or critically injured casualties as an eyewitness”
  5. Misapplying the definition of a clinically significant psychiatric condition

The Court’s Consideration

A life threatening event

The first two grounds of appeal related to the patrol incident and whether this constituted a category 1A stressor.

The Court considered the Tribunal confined itself to a consideration of Mr Simos’ subjective response to the patrol incident, and failed to make a reasoned determination as to whether or not the patrol incident was a life threatening event.

The Court said:

When dealing with the issue of whether Mr Simos had experienced a life threatening event, at the Deledio step 3 stage, the Tribunal was not engaged in a fact finding exercise. It was concerned to determine whether the hypothesis that Mr Simos suffered was war caused anxiety disorder fitted within the “ template” constructed by the SoP. The Tribunal concluded that the material did not point to Mr Simos having experienced any life threatening event during service. It did not say why it had come to this conclusion and in particular why the patrol incident did not constitute a “ life threatening event”.

The Court concluded that  the Tribunal  dealt with Mr Simos’ claim to have experienced a category 1A stressor on the mistaken basis that Mr Simos did not assert that the patrol incident could, objectively, be regarded as a life threatening event. This mistake was critical in the determination of the appeal.

The Tribunal recorded that Mr Simos had agreed that “ there was no objective event meeting the definition of a 1A stressor”. The Court concluded the Tribunal’s failure to give any detailed consideration to this aspect of Mr Simos’ claim, strongly suggested that it accepted and acted on what it considered to be a concession that no objective basis for the claim existed.

This ground was allowed.

Viewing corpses or critically injured casualties as an eyewitness

The Tribunal had said that Mr Simos had not experienced a category 1B stressor as defined because he did not view a corpse or a critically injured casualty at any time, although he claims to have seen body bags at Saigon Airport from a distance of 50 metres. Its conclusion was that body bags could not be equated with viewing corpses.

Mr Simos submitted that the word “corpse” should be given its widest meaning and should not be read down to require direct or immediate observation.

The Court noted the viewing of corpses was one of a number of “severe traumatic events” referred to in the definition of “a category 1B stressor” in clause 9 of the SoP. Each of the events described in the definition involves the observation, by the veteran, of the infliction of serious physical harm or death or the subsequent observation of dead or maimed victims. The veteran is confronted with a dead or badly injured person. The Court considered there was no basis for extending the reach of the definition to cover observations made after a victim has been treated in hospital or has been embalmed and placed in a body bag. At 44:

Observations of this latter kind are removed from the close temporal proximity of the observation of the infliction of harm on the victim or of its immediate consequences which are the severe traumatic events comprehended by the definition.

The Court concluded Mr Simos did not view a corpse when he saw body bags in Saigon Airport and the Tribunal was correct in holding this observation did not fall within the definition of a category 1B stressor.

Adequacy of reasons

This ground also related to the body bag incident. As already noted, the Tribunal had said Mr Simos had not experienced a category 1B stressor because he had not viewed a corpse, but did not give reasons for reaching this conclusion.

The Court noted two of the doctors who gave evidence to the Tribunal were permitted to express their opinions that the viewing of body bags fell within the meaning of a category 1B stressor. The Court said at 53:

The medical witness were qualified to express an opinion as to the psychiatric effect on Mr Simos of his viewing body bags. Their expertise did not extend to a determination of whether or not Mr Simos’ observation and the impact of that observation on him constituted a category 1B stressor within the meaning of the SoP. That was a matter ultimately for the Tribunal to determine. It did so, while there may be an issue as to whether it gave adequate reasons for its negative determination on this point,, it was under no obligation to explain why it disagreed with the opinion of the two medical witnesses. This ground must be rejected.

Misapplication of the definition of “ a clinically significant psychiatric condition”

The Tribunal found that Mr Simos suffered from a generalised anxiety disorder and had done so since the time of his service in Vietnam. Despite this, the Tribunal found that his condition did not warrant ongoing management until 1998 when he commenced treatment by a clinical psychologist and that he did not have a clinically significant psychiatric condition. As a result it found he had failed to establish diagnostic criterion E in the SoP.

The Court concluded that it was open to the Tribunal to conclude that Mr Simos had suffered from GAD since his service but to also conclude that the condition did not warrant ongoing management until 1998. Mr Simos had to satisfy a series of symptoms from which he suffered must have caused him “ clinically significant distress or impairment”. A clinically significant psychiatric condition is defined in the SoP to mean a mental health disorder which is sufficient to warrant ongoing management. Mr Simos ‘ medical records did not disclose treatment prior to 1998. There simply was no ongoing management of his GAD. The Court found this ground was not made out.

Decision

Appeal allowed on the first ground that the Tribunal proceeded on the mistaken basis that Mr Simos had conceded that there was no objective foundation for his claim to have experienced a life threatening event.

Editorial note

objective /subjective assessment of whether a veteran experienced a “ life threatening event

The only ground of appeal allowed in this case concerned the failure of the tribunal to explain why it came to the conclusion the patrol incident was not a life threatening event.   The Court considered the tribunal acted on a mistaken belief that a concession had been made that there was no life threatening event on an objective basis, as such , the tribunal did not consider this part of the claim. Justice Tracey considered the tribunal did not properly asses the objective part of the test.

Reeves J considered the objective /subjective assessment of whether a veteran experienced a “ life threatening event” in the case of Border v Repatriation Commission ( No.2) [ 2010] FCA 1430.

It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception  of the event that is critical, his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life threatening event within the terms of subpara (a). That perception will be reasonable if judged objectively from the point of view of a reasonable person in the position of, and with the knowledge of the veteran, it was capable of and did convey the threat of death.. unlike subparas b and c, this is a mixed objective and subjective test.

Decision makers should be mindful that the objective subjective test only applies to subpara (a) of the definition of a category 1A stressor -  “ experiencing a life threatening event”.

viewing body bags does not equate with viewing corpses within the definition of a category 1B stressor

Also in this case, the Court concluded that viewing body bags could not be equated with viewing corpses within the definition of a category 1B stressor. Viewing corpses is one of  the examples given as a “ severe traumatic event”. The court specifically notes that observations of body bags are removed from the close proximity of the infliction of harm on the victim or its immediate consequences. As such the court considered Mr Simos did not view a corpse when viewing body bags.
This is in contrast to the earlier decision of Constable v Repatriation Commission [2005]FCA 928, where the court decided that the AAT had erred in its decision when it considered that:

Only an event which actually caused death or serious injury or subsequent casualty clearance sufficiently close in time and space to such causation could be a relevant event. Such approach is not prescribed by the Statements of Principles. The Statement of Principles provides that participation in, or observation of casualty clearance may be a severe stressor.

This was previously the case as the Statements of Principles in that case specifically referred to “ experiencing a severe stressor” which included in the definition observation of casualty clearance.

a clinically significant psychiatric condition

Please also note the Statements of Principles define “a clinically significant psychiatric condition” to mean any axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits( for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
In this case the Court found the medical records did not disclose ongoing management of Mr Simos’ GAD, a requirement in the definition of a clinically significant psychiatric condition.

All Practice Notes