Case: Stoddart v Repatriation Commission [2003] FCA 334
Outcome: cited
his grounds of appeal the applicant claimed that the Tribunal ignored the cognitive impairment aspect of the disorders, and failed to make a finding on whether the applicant's response involved intense fear, helplessness, or horror. This ground of appeal was supported by submissions that the Tribunal failed to make findings as to whether this event might evoke such feelings, and that the Tribunal did not apply the test in Stoddart v Repatriation Commission [2003] FCA 334 and put itself in the position of Mr Byrne when he experienced the casualties which had occurred shortly prior to the arrival at the site. The applicant also claimed in questions of law (ii) and (iv) that the Tribunal failed to consider whether the applicant subjectively experienced a 'severe stressor' (Post Traumatic Stress Disorder SoP) and that the Tribunal failed to consider whether the applicant subjectively experienced a 'severe psychosocial stressor' (Depressive Disorder SoP). In making these claims, the applicant referred to the decision of Manfield J in Stoddart . In that case, Mansfield J found, inter alia , that the test of ' experiencing a severe stressor' in the SoP concerning Post Traumatic Stress Disorder encompasses a subjective element. His Honour in that case held at [40] that the Tribunal erred because it had concluded that the acceptance of the applicant's claims about the occasions giving rise to his fears 'do not objectively satisfy the relevant factors', namely being 'confronted with an event or events that involved actual...or threat of death, or serious injury'. His Honour said: 'In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (ie are subjectively experienced) the risk of death or serious injury or to physical integrity.' The applicant before me emphasises the words 'risk of death of serious injury' in the judgment of Mansfield J and submits that the Tribunal did not use this test when assessing whether Mr Byrne subjectively satisfied the SoPs. 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.