FCA 1866
|Federal Court, Queensland
|DATE OF DECISION
|29 November 2018
|The appeal was dismissed
|Veteran suffering from PTSD – whether veteran’s Vietnam service resulted in war-caused PTSD or its worsening – whether Tribunal had erred in law in application of standard of proof and applicable Statements of Principles
The applicant, Mr Ronald Stevens, served in the Royal Australian Navy and has various periods of operational service as a member of the crew of HMAS Sydney, either in Vung Tau harbour or in waters off the then Republic of South Vietnam. He applied for a disability pension for a number of conditions, including post traumatic stress disorder (PTSD). Relevantly, PTSD was rejected by a delegate of the respondent, and that decision was affirmed on review by the Veterans’ Review Board (VRB). The Administrative Appeals Tribunal (AAT) affirmed the VRB’s decision. The applicant appealed to the Federal Court.
The Court’s consideration
Did the AAT overlook or fail to consider submissions advanced by the applicant, where those submissions were worthy of serious consideration or were centrally relevant to the decision?
The applicant contended his submissions - that each of the trips he took on HMAS Sydney in and out of Vung Tau Harbour in Vietnam was an ‘event’ for the purposes of the phrase ‘experiencing a life-threatening event’ in the Statement of Principles (SoP) - were worthy of serious consideration and were not considered by the AAT, which constituted an error of law. The Court noted the applicant’s statement of issues, facts and contentions at the AAT did not include this issue. The Court indicated in some circumstances it is possible on the commencement of or even, exceptionally, during the course of an AAT hearing to introduce a further issue, but any endeavour to do so is necessarily limited by considerations of procedural fairness. Further, the statutory criteria applicable to the decision under review may require the Tribunal to raise with the parties whether a particular criterion is proved on the material before it.
In the present case further issues were not introduced by either party after their respective statements of issues, facts and contentions were lodged. The Court considered the AAT did not overlook any issue worthy of serious consideration. The AAT’s reasons reveal it went further than the course of events on the hearing may have required, to cover other factors originally raised by the applicant and abandoned in closing written submissions.
Did the AAT properly construe and apply section 120(3) of the VEA?
The Court outlined the requirements of subsections 120(1), 120(3) and 120A(3) of the VEA, before referring to the AAT’s reasons for decision and the Deledio test. The Court noted factor 6(a) of the SoP states:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder.
The definition of a “category 1A” stressor in paragraph 9 of the SoP includes ‘experiencing a life threatening event’. Having regard to factor 6(a) in the SoP, the Court considered there was nothing in the material before the AAT which raised an hypothesis connecting the applicant’s PTSD with the circumstances of his operational service on HMAS Sydney, including the “experiencing” of a life threatening event by the applicant. The Court considered the meaning of “experiencing a life threatening event” in Border v Repatriation Commission (No. 2)  FCA 1430, having regard to Woodward v Repatriation Commission  FCAFC which examined the earlier SoP definition of “experiencing a severe stressor”. Given the explanations in Woodward and in Border, the applicant’s difficulty, correctly identified by the AAT, was that there was nothing in the material before the AAT which pointed to a life threatening event experienced by him in the course of his operational service as part of an hypothesis. The Court considered all that the AAT did was to assess the material before it so as to determine whether there was an hypothesis which was reasonable, which entailed no misconstruction or misapplication of ss 120 or s120A of the VEA.
Did the AAT properly construe and apply factor 6(h) of the SoP?
The AAT also considered the clinical worsening factor in the SoP, as the parties agreed PTSD manifested shortly after the applicant experienced the trauma of the Melbourne-Evans collision tragedy on 3 June 1969, before his first operational service tour to Vietnam on 21 October 1970. The agreed clinical onset date meant a claim based on factor 6(a) would have failed. The Court noted the same definition of “experiencing a category 1A stressor” applies to factor 6(h) and 6(a), so for reasons already given the material before the Tribunal concerning the circumstances of the applicant’s operational service did not raise an hypothesis which included that he had experienced a category 1A stressor.
Did the AAT fail to afford procedural fairness to the applicant in the hearing and determination of his application for review?
The asserted denial of procedural fairness arose from the AAT’s reference to an earlier AAT case concerning another member of the crew of HMAS Sydney, Voelker and Repatriation Commission  AATA 427. The Court noted each party referred the AAT to previous cases concerning claims under the VEA made by persons who had served on HMAS Sydney during the Vietnam War, and it was the respondent which had referred to Voelker. The Court considered the applicant had an opportunity to address Voelker at the hearing, and the AAT did not make an evidentiary use of that case, only an explanatory use, in assessing the material before it so as to determine whether it raised an hypothesis which included a life threatening event.
Did the AAT fail to provide reasons for its decision in breach of its obligation to do so under section 43(2B) of the AAT Act?
The applicant’s complaint about the adequacy of the AAT’s reasons was that he had raised as a subject for consideration that “each of the trips which the Applicant took on HMAS Sydney was an ‘event’ for the purposes of the phrase ‘experiencing a life-threatening event’ as that phrase is used in the SoP”. However, the Court considered for reasons already given he had not raised this subject for consideration, therefore it was not surprising the AAT did not address the subject.
The Court’s Decision
The appeal was dismissed.
The Court referred to paragraph 67 in Border in relation to the meaning of “experiencing a life-threatening event”:
…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 was capable of, and did convey the threat of death. Unlike subparas (b) and (c), 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. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, 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 gun that was in fact unloaded.