Case: Repatriation Commission v Stoddart [2003] FCAFC 300 ; (2003) 134 FCR 392
Outcome: cited
The Tribunal then at [68] posed for itself the question whether the alcohol abuse "resulted from the objective/subjective effect of a severe stressor that might evoke intense fear ( Repatriation Commission v Stoddart [2003] FCAFC 300 ; (2003) 134 FCR 392)". It said at [69] that the "relevant factors" were those in cl 5 (a), (b) and (d). (Clause 5(b) and (d) are quoted at [6] above; cl 5(a) refers to suffering from a psychiatric disorder at the time of onset of alcohol abuse as already mentioned, this is no longer relevant). The Tribunal said that "Mr Goodwin met these criteria". 15 After rejecting the anxiety disorder hypothesis the Tribunal said (all emphasised words are in the original): 72. The Tribunal finds that the stressors nominated by Mr Goodwin do not meet the severity delineated in DSM-IV [a diagnostic manual] and adopted by SoP No 1 of 2000, concerning GAD [generalised anxiety disorder], but do meet the requirements of Factor 5(b) of SoP No 76 of 1998 which states: ... 5(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or ... 5(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse;... 73. This SoP defines experiencing a severe stressor in the following terms: means, the person experienced, witnessed or was confronted with, 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 [emphasis added]. 74. The Tribunal considers that the inclusion of the word might in this definition lowers the standard of proof. Might is defined in the Short [sic] Oxford Dictionary (Third Edition), amongst other definitions, as expressing a possibility. Both Dr Walton and Dr D'Ortenzio have related such a possibility and Dr Percival qualified it as a probability. The use of the term might in the Tribunal's opinion shifts the weight in the assessment in the objective/subjective analyses (Stoddart) of claimed stressors toward the subjective analysis; and in light of the psychiatric opinion, the Tribunal finds that the stressors described and in particular the bar theft accusation and search, do meet the SoP's criteria. 75. The second of the four elements of this complex hypotheses argued in the alternative to the first is upheld; and as a result the remaining two elements flow directly from this finding; resulting in the decision that Mr Goodwin's death was causally related to his operational service... 20 The construction which Full Court decisions have placed on this expression in the context of the SoP can be summarized as follows: 1. The event must be one which (i) the person actually perceived as involving actual or threatened death or serious injury and (ii) which could reasonably be so perceived by someone with that person's knowledge and experience. There are both subjective and objective elements: Repatriation Commission v Stoddart [2003] FCAFC 300 ; (2003) 134 FCR 392 at [22] , [30]. 2. It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31]. 3. To be "confronted" with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission [2003] FCAFC 160 ; (2003) 131 FCR 473 at [123] . 4. "Risk" is used in the sense of "an indication of probable evil to come: something that gives indication of causing evil or harm": Stoddart at [36]. 21 In the passage at [74] of its reasons, quoted at [15] above, the Tribunal misunderstood the term. The use of the word "might" has nothing to do with "shift(ing) the weight ... towards the subjective analysis". The word "might" accommodates the possibility that a person of particular fortitude might be confronted with an event involving, for example, threat of death, but does not react with "intense (or any) fear, helplessness or horror". Such a person would be, literally, fearless. Nevertheless, such an event might evoke the actual, and objectively reasonable, intense fear etc in an ordinary person. At the other extreme, the definition excludes an event which (objectively) does not have the possibility of evoking the reaction of intense fear etc. The definition thus sets out the limits within which the Stoddart subjective and objective tests are to be satisfied. The concluding part of the definition ("which event or events...") is setting out the objective criteria which the event must satisfy. Of course, the event must also be one which the person (subjectively) perceived as involving a threat of death etc and which a reasonable person could (objectively) so perceive.