Case: Stoddart v Repatriation Commission (2003) 74 ALD 366
Outcome: considered
applicant submits that in assessing the alleged stressors, the circumstances of the veteran should be taken into account including, in this case, that his brother had previously been wounded in Vietnam, and that both men and a cousin were then serving there. It is submitted that the Tribunal was also obliged to take into account the "applicant['s] unique circumstance of suffering from a diagnosed psychiatric condition of hysterical personality". In making these submissions the applicant relies upon the decision of Mansfield J in Stoddart v Repatriation Commission (2003) 74 ALD 366, especially at [50] as follows: In my judgment, the meaning of the word "threat" as used in the definition of "experiencing a severe stressor" does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause "that involved actual or threat of death or serious injury ..." explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word "threat" a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively and with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of "sound medical-scientific evidence" in s 5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the tribunal adopted. At [51], after reference to the relevant legislation, his Honour concluded: It is consistent with those provisions that the SoPs should be read as meaning that a claimant experiences "a severe stressor" if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which that person's knowledge and in that person's experience, could reasonably be so perceived. I understand the enquiry to be as to an objective state of affairs, having regard to the veteran's knowledge and experience. The applicant's brother's previous injury may have caused the former to have a heightened awareness of the possible consequences of involvement in armed combat. The Tribunal took that matter into account when it used the words "even one with a relative who had been hurt in the past". Whether such heightened awareness constituted "knowledge" or "experience" for present purposes may be doubted. However increased susceptibility to psychological trauma as a result of hysterical personality or a brother's injury is not knowledge or experience. The respondent submits that the applicant's challenge to this aspect of the Tribunal's decision is really an attack upon a finding of fact, and therefore not properly a ground of appeal. There is substance in that submission. However I conclude that the Tribunal did not fully understand the definition of the words "experiencing a severe stressor" as applied to the applicant's handling of the casualty lists. Reading the casualty lists may have amounted to his experiencing, witnessing or being confronted by an event or events "that involved actual or threat of death or serious injury or a threat to the person's or other people's physical integrity which event or events might evoke intense fear, helplessness or horror". Having his attention regularly drawn to casualty lists in a theatre of war might well have involved the applicant in experiencing, witnessing or being confronted by events which caused death or serious injury, even if the actual events were not identified. Alternatively his reading of the lists may, itself, have been an event or events which involved actual death or serious injury. Exposure to the casualty lists might also constitute a threat of death or serious injury, particularly if one is present in the theatre and/or one's brother and cousin are there. I see no reason why repeated exposure to casualty lists might not evoke intense fear, helplessness or horror. The Tribunal disposed of this aspect of the case without regard to these matters. The evidence concerning the applicant's handling of casualty lists was not substantial. He did not claim to have been adversely affected by reading the casualty lists at the time. He seems rather to have been concerned to ensure that his brother and cousin were not on the lists. He felt no particular reaction (other than relief) upon discovering that neither was on each list. This evidence, perhaps in conjunction with medical evidence, might, at the fourth step, lead to the rejection of the applicant's claim. However that process should not be allowed to impinge upon step three. I consider that the Tribunal did not consider the relevant question in dealing with the applicant's handling of the casualty lists as a potential stressor.