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O’Dowd v Repatriation Commission

[2013] FCA 991

COURT Federal Court, Melbourne
JUDGE Marshall J
DATE OF DECISION 1 October 2013
DECISION The appeal was dismissed
ISSUES Whether AAT erred in deciding the applicant did not suffer from PTSD

Facts

Mr O’Dowd served in the Royal Australian Navy and had operational service in Vietnam between 20 March 1969 and 13 October 1969 on board the HMAS Brisbane.  He lodged a disability pension claim for a number of conditions.  A delegate of the Repatriation Commission accepted Mr O’Dowd’s claims for hearing loss, tinnitus and solar keratosis but decided that his claimed PTSD, rosacea and asthma were not related to his war service.  He was granted a disability pension at 40 percent of the General Rate.  Mr O’Dowd appealed to the VRB.  The Board consented to the withdrawal of Mr O’Dowd’s application for review regarding his asthma, affirmed the Repatriation Commission’s decision regarding his PTSD and rosacea and increased his disability pension to 50 per cent of the General Rate.  Mr O’Dowd sought further review by the Administrative Appeals Tribunal (Tribunal), and it was agreed between the parties that Mr O’Dowd’s rosacea was war-caused.  The Tribunal affirmed the VRB’s decision regarding PTSD.   Mr O’Dowd then appealed to the Federal Court.

Grounds of appeal

The Tribunal decided that :

  1. Mr O’Dowd did not suffer from PTSD;
  2. If it was wrong in so deciding, such PTSD was not war-caused.

Mr O’Dowd only appealed against the first part of the Tribunal’s decision.

The Court’s consideration

Mr O’Dowd relied on two “extreme traumatic stressors” in 1969 which led to him suffering PTSD.  The first stressor was in May 1969 when he claimed to have visited a hospital at Subic Bay in the Philippines whilst on recreation leave.  He visited the children’s ward of the hospital with other servicemen, and saw a young girl in a wheelchair with both legs amputated below the knees and her legs wrapped in bandages.  The second stressor was in June 1969, when Mr O’Dowd was the weapons fire control leading hand on board HMAS Brisbane and his role was to oversee the firing of two guns.  He received target coordinates from an American spotter pilot which, as it transpired, reflected that pilot’s then position.  The firing occurred and Mr O’Dowd realised that the pilot had sought to be fired upon deliberately and was killed.

The Tribunal found that Mr O’Dowd did not have PTSD, and did not consider either event was an extreme traumatic stressor.  The Tribunal examined the criteria in DSM-IV in considering whether Mr O’Dowd had PTSD.  In particular, regarding criterion A(1) where a person “experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others”, the Tribunal found Mr O’Dowd did not witness the second event nor did he experience it.  He heard about it sometime after the event was said to have occurred.  The Tribunal approached the first event in a similar way.  The Court noted the Tribunal:

…acknowledged that criterion A(1) in DSM-IV referred to being “confronted with” an event and noted that the introductory paragraph dealing with PTSD in DSM-IV does not refer to being confronted with an event.  The Tribunal also acknowledged the Court in Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 took a broad view of the words “being confronted with” but observed that that case was concerned with the interpretation of legislation and a Statement of Principles (“SoP”) and not with the correctness of a medical diagnosis.

The first two questions of law in the appeal raised the issue of whether the Tribunal failed to take into account a relevant consideration by relying on the introduction to the diagnostic criteria for PTSD in DSM-IV, without considering whether Mr O’Dowd had been confronted with a relevant event in accordance with criterion A(1).  The Court concluded the Tribunal did not err in its application of DSM-IV to Mr O’Dowd in the context of the two stressors alleged to have affected him by reason of being confronted with them, and the Tribunal was entitled to read the words “confronted with” in criterion A(1) in the context of the introductory paragraph to DSM-IV.  The Court accepted the submission by counsel for the respondent that the Tribunal’s discussion of Mr O’Dowd’s alleged stressors was consistent with the approach taken by Spigelman CJ in New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583, where the Chief Justice referred to the need for a person to experience an event causing injury or death, unless the event involves a family member or close associate.  The Court considered Seedsman involved an analysis of DSM-IV, whereas Woodward involved statutory construction.

The third and fourth questions of law in the appeal raised the issue of whether the Tribunal erred in finding that Mr O’Dowd’s response to the Subic Bay event did not invoke “intense fear, helplessness or horror” within the meaning of criterion A(2) of the definition of PTSD in DSM-IV.  The Court found that the Tribunal did not err in this way.  The Court indicated whether Mr O’Dowd felt helpless was a question of fact for the Tribunal to determine, and its finding was open to the Tribunal on the evidence before it.  The Tribunal rejected the suggestion that Mr O’Dowd experienced horror, preferring other evidence, and that finding of fact was available to the Tribunal.

The fifth question of law in the appeal raised the issues of whether the Tribunal erred in finding that Mr O’Dowd did not suffer from PTSD and that it failed to decide whether his symptoms amounted to an alternative diagnosable disease.  The Court agreed with the respondent’s contention that the Tribunal’s only obligation is to determine whether the veteran suffers from a diagnosable disease in accordance with Repatriation Commission v Bawden (2012) 206 FCR 296, and a fair reading of the Tribunal’s reasons show that it discharged its obligation to consider alternative diagnoses raised on the evidence before it.

The last question of law asked whether the Tribunal denied Mr O’Dowd procedural fairness by finding that his symptoms could be explained by his rosacea, without putting that allegation to him in the course of the hearing.  This issue was based on a false premise, as the Tribunal did not find that Mr O’Dowd’s symptoms could be explained by his rosacea - rather it said his avoidance of crowds can be explained by his rosacea in the context of a possible alternate diagnosis of agoraphobia.  The Court found no denial of procedural unfairness occurred.

The Court’s decision

The appeal was dismissed.

Editorial Note

The decision of the Tribunal goes into further detail about the introductory paragraph dealing with PTSD in DSM-IV, which:

…describes the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threatened death or injury experienced by a family member or other close associate.

The Court’s decision that the Tribunal was entitled to read the words “confronted with” in criterion A(1) in the context of the introductory paragraph to DSM-IV, is a departure from a strict reading of criterion A(1).  The Court preferred the approach of the Court of Appeal of the Supreme Court of NSW in Seedsman, over the more expansive view of the Full Federal Court when interpreting the meaning of “being confronted with” in Woodward,on the basis that Seedsman involved an analysis of DSM-IV, whereas Woodward involved statutory construction.

It will be interesting to see how the Court’s decision in O’Dowd is applied in future cases involving the question of diagnosis of PTSD.

All Practice Notes