Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: applied
the proceeding before the Tribunal, the applicant claimed that the post traumatic stress disorder and dysthymic (or depressive) disorder from which he suffered resulted from his service in Vietnam, in particular an incident which took place in Vietnam on 9 November 1969. The Tribunal, applying the four-step test articulated by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (' Deledio '), found in favour of the applicant on application of three of the steps, however found against the applicant on the final step which involved causation. In short, although there was no issue as to the fact that the applicant did suffer from post traumatic stress disorder and dysthymic disorder, the Tribunal found that these incapacities of the applicant were not caused by the incident of 9 November 1969, and were not 'war-caused'. The leading case articulating the process of reasoning the Tribunal is to undertake in considering a claim under the Act in respect of incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person, is the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Full Court at 97-98 said as follows: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. As I noted earlier in this judgment, the Tribunal was satisfied that the period of defence service relevant to the claim of the applicant, namely from 4 June 1969 until 15 May 1970, was operational service and eligible war service as those terms are defined in s 7 and s 6C of the Act. Further, the Tribunal was satisfied that there was evidence for the diagnoses of post traumatic stress disorder and dysthymic disorder in the reports of the psychiatrists Dr Athey and Dr Mulholland. The Tribunal was also satisfied that, notwithstanding the fact that the applicant was on leave on 9 November 1969, this did not affect his status of being allotted for operational service during that time. Finally, the Tribunal was satisfied that the applicant had not suffered injury as a result of serious default or wilful act as defined in s 9. The Tribunal then considered the four-step course as outlined in Deledio that the Tribunal is to take in considering a claim of this nature. First, the Tribunal concluded that there was material pointing to a hypothesis connecting the applicant's claimed conditions of past traumatic stress disorder and dysthymic disorder with the events of 9 November 1969. Accordingly, the first Deledio step was satisfied. Second, the Tribunal considered the position with respect to SoPs. SoPs are determined by the Repatriation Medical Authority pursuant to s 196B of the Act. The Tribunal concluded that two SoPs were relevant, namely Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) concerning post traumatic stress disorder and Instrument No 58 of 1998 concerning depressive disorder. For the purposes of the claim, the relevant paragraphs were: &#8226; In the SoP concerning Depressive Disorder (Instrument No 58 of 1998), pars 5 and 8. Paragraph 5 defines factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the depressive disorder with the circumstances of a person's relevant service including: '... (b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinic onset of depressive disorder.' Paragraph 8 defines 'severe psychosocial stressor' as meaning: 'an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.' Accordingly, the second Deledio step was satisfied. Third, the Tribunal found that the hypothesis advanced, namely that the psychiatric conditions of the applicant were attributable to the events of 9 November 1969, was reasonable in the context of both the SoPs concerning Depressive Disorder and Post Traumatic Stress Disorder. In doing so, the Tribunal accepted the summary of evidence given by the applicant and other witnesses. Accordingly, the third Deledio step was satisfied. However, the Tribunal found against the applicant in respect of the fourth Deledio step. In other words, the Tribunal found that the incapacities of the applicant, namely the post traumatic stress disorder and the dysthymic disorder, were not war-caused. In summary: (a) in relation to the claim for post traumatic stress disorder, the Tribunal was satisfied beyond reasonable doubt that the incident at Nui Dat on 9 November 1969 did not have a significant effect on the applicant for reasons that: &#8226; It was clear that, when giving evidence, the applicant's recollections of the event were vague. &#8226; The applicant remained some distance from the injured men, and did not speak with them or provide assistance such as loading the wounded into a medivac helicopter. &#8226; The evidence indicates that the applicant had no recall of any aspect of the event until he spoke with Mr Ellis at a reunion of personnel from his RAAF squadron 30 years later. &#8226; The Tribunal was unable to accept the correctness of the applicant's recall of the nature of his reaction to the sight of the wounded soldiers. &#8226; The evidence of the applicant and Mr Ellis and Mr Smith, both of whom also gave evidence, was that after they left the minefield they undertook an uneventful tour of Vietnamese villages. &#8226; On 14 November 1969, five days after the event, the applicant wrote a letter to his parents referring to the day he spent with Mr Ellis and Mr Smith but not referring to the minefield incident. &#8226; The evidence of Dr Barry was, inter alia , that an inability to recollect details of a stressful event is a characteristic of post traumatic stress disorder, however that the minefield incident was in itself not sufficient to result in post traumatic stress disorder. Her diagnosis was that the applicant's post traumatic stress disorder was based upon the impact of a range of experiences. As a result of this however the Tribunal was concerned as to her evidence in the light of the applicant's claim as the SoP concerning Post Traumatic Stress Disorder requires the applicant to experience a severe stressor . The Tribunal was of the view that if the events of 9 November 1969 did not constitute a severe stressor which was sufficient, in Dr Barry's diagnosis, to trigger post traumatic stress disorder, it would also not result in the suppression of memory which is a symptom associated with that disorder. &#8226; The evidence of Dr Athey was, in the view of the Tribunal, of limited use as Dr Athey was not made aware of the incident of 9 November 1969 by the applicant. &#8226; The evidence of Dr Mulholland was, in the view of the Tribunal, coloured by the version of the events given by the applicant to Dr Mulholland, namely that the applicant had been 'dragooned' into an 'operation' in which he was 'acting as an escort for the evacuation of wounded soldiers' which 'lasted a few hours' and which left him 'pretty much exposed'. The Tribunal was satisfied beyond reasonable doubt that what actually occurred on 9 November 1969 was not consistent with the version relied upon by Dr Mulholland. (b) In any event, the Tribunal stated that it was satisfied beyond reasonable doubt that the incident at Nui Dat was not an event that met the requirements of 'experiencing a severe stressor' as provided for in the SoP concerning Post Traumatic Stress Disorder Accordingly, the condition was not 'war-caused' under s 9. (c) The analysis in relation to post traumatic stress disorder was equally applicable in relation to the applicant's claim concerning dysthymic disorder, namely as to whether the minefield incident was a severe psycho-social stressor. The Tribunal was satisfied beyond reasonable doubt that the evidence did not disclose a reaction by the applicant which equated to substantial distress. In the view of the Tribunal, while there is evidence that the applicant experienced depression not long after returning to Australia, this was as a result of events not associated with his service in Vietnam. These events were also referred to by the medical experts, specifically: &#8226; the severance of the applicant's relationship with his then girlfriend &#8226; the applicant learning that one of the crewmen with whom he had worked in Vietnam had been killed there. As the Tribunal was of the view that the claim of the applicant did not satisfy the fourth Deledio step and was not war-caused, the Tribunal affirmed the decision under review in relation to post traumatic stress disorder and depressive disorder. In terms of the four-step test articulated in Deledio , which was applied by the Tribunal, the only 'step' which is in contention is the fourth step which involves consideration of causation. As I noted earlier in this judgment, the Tribunal was otherwise satisfied that there was material before it pointing to a hypothesis connecting the applicant's claimed condition of depression and dysthymic disorder with the events of 9 November 1969, that there were relevant SoPs in force supporting the hypothesis, and that the hypothesis was reasonable. As made clear by the decisions of the High Court in Byrnes and the Full Court in Deledio , once the decision-maker has determined that the hypothesis raised is reasonable, the decision-maker must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the injury was not war-caused . It is only at this stage that the decision-maker will be required to find facts from the material before it. As the High Court said in Byrnes : 'The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.' The respondent has submitted that the appeal is misconceived in so far as it is asserted in the notice of appeal that the questions of law raised on the appeal involve the misconstruction or misapplication of the SoPs. This is because the construction and application of the SoPs occurred at the third Deledio step, and at that stage of the reasoning the Tribunal found in the applicant's favour. In my view, the respondent's submission has merit. In particular, the questions of law in the notice of appeal numbered (iii), (iv), (v) and (vii) relate to issues which were decided by the Tribunal in the applicant's favour in the third Deledio step. In my view the submissions of the applicant on this point are not supported by analysis of the decision of the Tribunal. The Tribunal in its reasoning did recognise that an objective and subjective component of experiencing a severe stressor must be evident. In relation to post traumatic stress disorder, the Tribunal referred to Stoddart ; in relation to dysthymic disorder the Tribunal referred to White v Repatriation Commission [2004] FCA 633 , a decision of Spender J which in turn referred to the test in Stoddart . Applying the test in relation to both disorders, the Tribunal was of the view, within the context of the third Deledio step, that the material concerning the applicant's observation of and reactions to the minefield incident did point to the existence of both objective and subjective components. However, in order for the post traumatic stress disorder and dysthymic disorder of the applicant to be related to the applicant's service within the meaning of the Act, clearly the Tribunal needed to consider the evidence within the fourth Deledio step as to the events that occurred and whether the applicant experienced a severe stressor (in relation to post traumatic stress disorder) or a severe psychosocial stressor (in relation to dysthymic disorder). At par 38 and par 39 the Tribunal found: 'The extent of (the applicant's) involvement was in seeing some injured soldiers and I am satisfied beyond reasonable doubt that this was not an event that meets the requirements of experiencing a severe stressor as provided for in the Statements of Principles for post traumatic stress disorder...In relation to dysthymic disorder, the analysis above is equally applicable to whether the minefield incident was a severe psycho-social stressor.' Accordingly, the Tribunal formed the view on the basis of the evidence before it that the applicant's disorders were not war-caused. It was not necessary for the Tribunal to consider whether the incident 'might' evoke feelings of intense fear, helplessness or horror. In my view no error of law arises in the Tribunal's consideration of this issue.