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Besson v Repatriation Commission (FCCA)

[2014] FCCA 123

COURT Federal Circuit Court, Brisbane
JUDGE Judge Burnett
DATE OF DECISION 6 February 2014
DECISION The appeal was dismissed
ISSUES Application for disability pension - PTSD - operational service - whether there was a reasonable hypothesis connecting the disease with the circumstances of the applicant - experience of a life threatening event - subjective/objective test

Facts

On 15 June 1964 Mr Besson was on operational service as a member of the crew of HMAS Sydney, when he claimed to suffer a “life threatening event”. He later developed post traumatic stress disorder and other conditions. His application for a disability pension was refused by the Repatriation Commission, on the ground that his PTSD could not be linked to his operational service. On review, the Administrative Appeals Tribunal (the Tribunal) affirmed that decision. Mr Besson appealed to the Federal Circuit Court of Australia.

Issues before the Tribunal

The Tribunal accepted that on 15 June 1964, while HMAS Sydney was on escort duty near Indonesia, the ship’s company was called to action stations and ordered to secure the ship. The Tribunal also accepted Mr Besson’s evidence that immediately before this event, he was about to ascend to the ship’s weather deck to rest for the evening. Before Mr Besson could reach the deck, the exit hatch was secured and he was confined within the compartment until an ‘all clear’ was sounded about seven to fifteen minutes later. Mr Besson’s evidence to the Tribunal was that he “assumed the crew were all about to die because the ship must have been under attack” and that he was “terrified throughout the incident”. The Commission conceded that Mr Besson suffers from PTSD and a range of other conditions, but did not accept there was a causal link between the Mr Besson’s PTSD and his operational service. At paragraph [18] the Tribunal noted a ‘subjective/objective’ test must be applied to determining the question of whether Mr Besson’s story fits the definition of category 1A stressor (which includes a “life-threatening event):

“…that is, a test which refers to a person (the objective component) in the applicant’s circumstances, which include his age, experience and some other matters.”

The Tribunal concluded at [19]:

“The applicant was a young recruit with limited experience - although this was not his first voyage. He had already been exposed to the dangers of naval service (through his own experience, and through the experiences of people he knew, like those who had perished on the [HMAS] Voyager). I accept a person in the applicant’s position would probably experience a degree of apprehension about the dangers that might lurk when a ship goes to action stations. I can even accept a sailor might feel more apprehensive when aboard an ageing vessel like the Sydney. They were cruising through potentially hostile waters, and potentially hostile vessels had been sighted in relatively close proximity earlier the same day. Even so, I am not persuaded a person in the applicant’s position could be expected to react to an alarm as the applicant did. He seems to have leaped to the conclusion that the alarm meant the ship was likely to be sunk. There was no reason for him to form that view, and other sailors of his age or experience would merely have been anxious at what might eventuate rather than terrorised by their imaginings of a particular and dire outcome.”

The Court’s consideration

The first ground of appeal was principally that the Tribunal member did not directly refer to the four step process as set out in Deledio, so it could not be said with any certainty that the Tribunal turned its mind to or applied the requisite test of assessing the reasonableness of the hypothesis raised by the appellant, in particular step 3. The Court noted that although the Tribunal did not mechanically list and signpost each step, it was apparent from its reasons that they were considered and addressed. The appellant’s substantive complaint was directed to the Tribunal’s remarks about its application of the ‘subjective/objective’ test and its finding. The appellant contended the Tribunal’s finding was erroneously based or reached following a mistaken conclusion by the Tribunal, because it failed to consider relevant material in the “T” documents, in particular, insufficient allowance was made for his naval history, including events that sought to heighten his basis for personal concern. The Court considered the finding made by the Tribunal was open to it on the material before it, and to contend that the Court ought to allow the appeal because of an “erroneous finding” or mistaken conclusion” invites the Court to effect impermissible merits review.

The second ground of appeal was that the Tribunal erred by restricting the SoP definition of “experiencing a life-threatening event”. The Court agreed with the respondent’s submission that the Tribunal applied the judicial interpretation of the phase “experiencing a life threatening event” in Border v Repatriation Commission (No 2) (2010) 191 FCR 163, in which Reeves J noted at [67]:

“…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, relevantly 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 a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it is capable of, and did convey the threat of death…this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner…the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a fun that was in fact unloaded.”

The Court accepted that:

“…the Tribunal did do what was required. That is, it applied the objective/subjective test in concluding that, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant, the incident relied upon was not capable of conveying the threat of death.”

The third ground of appeal was principally that the Tribunal made no reference to the cases in which the subject and objective test has been examined. The Court noted the absence of reference to authority does not of itself demonstrate error, and was satisfied the Tribunal appropriately applied the test in accordance with the caselaw.

The Court’s Decision

The appeal was dismissed.

Editorial Note

Please refer to the case summary of Border v Repatriation Commission (No. 2) under the 2010 Practice Notes on the VRB website, or in Volume 26 of VeRBosity at pages 75-78. In the present case, the Court also referred to the earlier authority of Stoddart when discussing the subjective/objective test. In Border (No. 2), the Court pointed out two key differences between Stoddart and Border (No. 2) - firstly, that Stoddart was dealing with step four in the Deledio process (not step three), and secondly, the expression being considered in Stoddart was “experiencing a severe stressor” (not “experiencing a category 1A stressor”).

All Practice Notes