Case: House v D.F.R.D.B. Authority [2004] FMCA 833
Outcome: cited
particular significance was the decision of the Tribunal immediately preceding the decision of the Tribunal the subject of this appeal. That decision House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667 was upheld on appeal to the Federal Magistrates Court ( House v D.F.R.D.B. Authority [2004] FMCA 833). I shall return to this decision later in the judgment. The decision of the Authority Mr Harding, appearing on behalf of Mr House, submitted in summary: Principles relevant to appeals to this Court from Tribunal decisions were explained in Collector of Customs v Pozzolanic [1993] FCA 456 ; (1993) 43 FCR 280 at 286-287. These principles include the following: a wrong finding of fact is not sufficient to demonstrate error of law; only in exceptional circumstances should the decision of the Tribunal not be the final decision; the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts; the reasons for the decision under review are not to be construed minutely and finely with an eye attuned to the perception of error. In relation to the Authority's claim that the Tribunal erred by revisiting findings of fact already made by the Tribunal in House [2004] AATA 667 and by not taking that decision into account, in fact the Tribunal made key findings on critical issues which differed from those of the earlier Tribunal decision. Accordingly, the decision of the Tribunal in House [2004] AATA 667 was made redundant. Specifically: in House [2004] AATA 667 , the Tribunal had found that the incapacity by reason of which Mr House was retired was the effects of alcoholism and that Mr House's prescribed physical and mental impairments were alcoholism and alcoholic liver disease, and not his personality disorder; in the decision the subject of this appeal, the Tribunal found that alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments; the Tribunal in the decision the subject of this appeal recognised it faced different evidence and different issues as to the kinds of civil employment which a person with the applicant's skills, qualification and experience might reasonably undertake; the fact that the 2004 decision of the Tribunal was upheld by the Federal Magistrates Court in House [2004] FMCA 833 is irrelevant it simply means that, in the view of the Federal Magistrates Court, the earlier decision of the Tribunal was not infected by legal error. In relation to the Authority's submission that the Tribunal had failed to take into account a relevant consideration, namely that Mr House's condition had improved, any comparison between Mr House's level of functioning at the effective date of the Tribunal's decision and earlier points in time must recognise that, until the Tribunal's decision, Mr House's personality disorder had not been considered to be one of his prescribed physical and mental impairments. In relation to the Authority's submission that the Tribunal failed to take into account relevant considerations as to the kind of employment Mr House could undertake in determining Mr House's overall incapacity for civil employment, the Authority was inviting the Court to consider the Tribunal's reasons "minutely and finely with an eye keenly attuned to the perception of error". In relation to the Authority's submission as to misdirection, that submission does not take the Authority's case any further than other grounds of appeal. In relation to the Authority's submission as to the alleged failure of the Tribunal to give adequate reasons, in relation to the issues which the Authority raised the Tribunal was not required to expressly give an explanation. The Tribunal made findings with reasons in respect of each of the issues under s 34 of the Act in compliance with s 43(2B) AAT Act. The Tribunal was required to make a global assessment, such an assessment is not a mathematical exercise, and a precise identification of how the Tribunal arrived at 30% incapacity is not necessary. Because the decision as to Mr House's degree of incapacity is a "value judgment", not a mathematical exercise, if the Court upholds the Authority's appeal the appropriate course is for the Court to remit the matter to the Tribunal as the arbiter of fact. Consideration First ground of appeal It is clear on reading the decision of Emmett FM in House [2004] FMCA 833 that the issue of Mr House's personality disorder had been raised in the proceedings both before the Tribunal in its 2004 proceedings and in the Federal Magistrates Court. In this context it is useful to set out comments by her Honour in House [2004] FMCA 833 with respect to this issue: "New grounds of Appeal 18. The Appellant argued orally that the Tribunal had further erred: a) in seeking to separate his personality disorder from his alcoholism and thereby discount by half the assessment of the Appellant's impairment in circumstances where that exercise had not been undertaken in any prior determination; b) in failing to find that the Appellant's personality disorder had been part of the reason for his discharge from the Armed Forces in May 1975 and therefore part of the physical or mental incapacity for which he was retired and therefore not able to be separated or discounted from his alcoholism; and c) in that the Tribunal's finding that the Appellant's alcoholism and personality disorder could be separated such that the percentage of the incapacity from impairment that was a cause of his retirement was halved was a finding so repugnant to the evidence as to amount to an error of law. 19. Leave was then sought by the Appellant to further amend his Amended Notice of Appeal to raise those further alleged errors of law. Leave was opposed by the Respondent on the basis that there had been ample time for the Appellant to seek leave prior to the hearing, that the Appellant had already amended his Notice of Appeal once and that in any event the grounds were so unlikely to succeed as to render leave futile. 20. In considering the question of leave, I have had regard to the submissions by the parties on the further grounds sought to be raised by the Appellant with a view to determining the likelihood of success of any of the further grounds raised. (a) Was it open to the Tribunal to discount the percentage of incapacity of alcoholism to take account of personality disorder 21. Before the Tribunal, the Appellant relied on the evidence of Dr J. Hargraves psychiatrist who had been treating the Appellant since January 1998. Dr Hargraves evidence was relied on in relation to the involvement of his personality disorder with the identified impairment of his alcoholism and the inability to distinguish the two impairments. 22. The Respondent relied on reports of Doctors Reddan and Stevenson as enabling the Tribunal to consider objectively the separation of the two conditions and to seek to deal with the personality disorder separately from the alcoholism by way of discounting the incapacity of the alcoholism by the personality disorder. The Tribunal had regard to Dr Hargraves opinion that the Appellant suffers from alcoholism and personality disorder (para 21). 23. It is common ground that personality disorder of the Appellant has been found by previous Tribunal decisions not to be a prescribed impairment. The Tribunal concluded that the prescribed physical or mental impairment in the Appellant's case is alcoholism and alcoholic liver disease. 24. The Tribunal found that "the respondent conceded that the impairment by reason of which the applicant was retired were alcoholism and alcoholic liver disease and this aspect is not in issue". (para 11) 25. The Tribunal concluded in paragraph 53 that: "Dr Hargraves has not opined that the cessation of work was entirely due to the effect of alcoholism. Consequently, whilst the applicant seeks to connect the cessation of work with the correlating escalation in the degree of his impairments, the Tribunal finds that this approach is misdirected and without foundation. It is clear from the reports of Dr Stevenson and Dr Reddan that an objective approach is warranted and this Tribunal agrees." In paragraph 34 the Tribunal said: "Dr Reddan acknowledges the artificiality of separating the symptoms produced by alcohol abuse and personality disorder." 26. On the other hand, Dr Hargraves report took into account both the Appellant's personality disorder and his alcoholism in assessing the incapacity of the Appellant to undertake to the Accepted Kinds of Employment. 27. Dr Reddan, in her report at page 815, states: "I think that people with personality disorder seem to be more prone to alcohol abuse." At AB 817 Dr Reddan was asked in chief: "If you were asked to look at Mr House and say, leaving aside the effect of his personality order, what effect does the alcohol abuse have on his capacity to undertake both kinds of employments we have identified? Is it possible can you make an assessment of just the effect of the alcohol abuse?" Answer: "Well, it is artificial and its difficult. As I said in that report things like attending work intoxicated or other sequelae of alcohol abuse I suppose we should say might have certain sequelae for some jobs but not for others. So the sort of percentages I was sort of estimating then were really when you kind of combine the two together and I think you'd really have to kind of almost if you assign a percentage you'd almost sort of have to harvest in each case in relation to personality or alcohol but it's a somewhat artificial kind of distinction that in real life isn't quite right." 28. Having regard to the finding of the Tribunal in respect of the separation of the personality disorder from alcoholism and the consequent halving of the impairment, the Tribunal clearly acknowledges the evidence of Dr Reddan that there is an artificiality in separating the symptoms. Whilst I may not necessarily have come to the same conclusion, it is clear that the Tribunal's finding was open to it on the evidence before it." [29] Further, in submissions before the Tribunal, the Respondent clearly invited the Tribunal to discount the incapacity arising from the Appellant's personality disorder although at the same time making it clear to the Tribunal that that was not an exercise that had been done before. [30] The Appellant did not seek to address that submission in any way at the hearing and states today that it was because neither he nor his representative had expected such a submission to be put and did not expect the Tribunal to make a finding in accordance with that submission. The Appellant stated today that the matter did not concern him at the time as he was of the view that it had not been possible on the medical evidence to date, and particularly in relation to Dr Hargraves evidence, to separate the alcoholism from the personality disorder. That is unfortunate and I have a deal of sympathy for the Appellant in perhaps failing to challenge those submissions when he had the opportunity. However, it cannot be said that opportunity was denied him.