Case: White v Repatriation Commission [2004] FCA 633 ; (2004) 39 AAR 67
Outcome: considered
White v Repatriation Commission [2004] FCA 633 ; (2004) 39 AAR 67 Spender J considered the definition of "severe psychosocial stressor" in a SoP which was in similar terms to the definition in the instant SoP. At [30] his Honour said: the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary. After observing that the Tribunal there had determined that the events relied on did not meet the objective requirement, his Honour continued at [32]: In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition ... would be not only irrelevant and devoid of utility, but positively misleading. As appears above, the Tribunal did not expressly address whether the appellant's seasickness was an identifiable occurrence that evokes feelings of substantial distress in an individual. It had before it evidence from Dr Strauss that: Before the Magistrate the respondent submitted that there was no evidence before the Tribunal that seasickness is a severe illness and therefore an occurrence which of its nature is objectively capable of evoking feelings of substantial distress. It said that Dr Strauss' evidence related only to the subjective effect of seasickness on the appellant. His Honour was referred to the observations of Spender J in White [2004] FCA 633 ; 39 AAR 67. The Magistrate did not accept the respondent's submissions on this issue. He considered Dr Strauss' evidence "taken in the round and fairly was to the effect that seasickness is capable of being a severe illness". He noted that Dr Strauss found that the appellant's experiences and their ramifications were a severe psychosocial stress for him, and caused him significant or substantial distress. He referred to the dictionary definition of "severe" disagreeably intense, unpleasantly extreme; (especially of bad weather, illness, injury etc) causing hardship pain or suffering by its degree of extremity. The Magistrate found that Dr Strauss' report evinced or was at least open to the interpretation that "he regarded these matters both objectively and as they affected Mr Cunningham individually". I agree with that reading of Dr Strauss' report. It is true that in his report he spoke of there having been a severe psychosocial stressor "for this man". But in cross examination he gave evidence about seasickness in the abstract, and said: seasickness begins with nausea and travels through to very severe symptoms. But seasickness involves nausea. I think [that] ... can be quite severe and debilitating.