Case: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82
Outcome: cited
13(1) of the Veterans' Entitlements Act 1986 (Cth) (the Act) renders the Commonwealth liable to pay pension to a veteran who is incapacitated by a war-caused injury or a war-caused disease. The circumstances in which an injury or disease is taken to be war-caused are set out in s 9(1) of the Act. So far as relevant to the present case those circumstances are where the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service: s 9(1)(a) or where the injury or disease arose out of or was attributable to any eligible war service (which includes operational service) rendered by the veteran: s 9(1)(b). Whether a veteran is suffering from an injury or disease, and the diagnosis of that injury or disease, is to be determined to the reasonable satisfaction of the decision-maker: s 120(4). Where, as in the present case, a claim relates to operational service, the standard of proof on whether an injury or disease is war-caused is prescribed by s 120(1) and (3). The question posed by s 120(3) is whether "the whole of the material" before the decision-maker raises a reasonable hypothesis connecting the injury or disease with the circumstances of the veteran's service. Section 120(3) is affected by s 120A , which provides that a hypothesis connecting a person's injury or disease with the circumstances of any particular service is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis. A hypothesis raised by the material will be reasonable only if it is consistent with, or fits the template of, the SoP: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 at 96. At the time of the respondent's decision there was in force SoP Instrument No 58 of 1996 concerning depressive disorder. Clause 3 of the SoP states that there is sound medical-scientific evidence that depressive disorder can be related to relevant service rendered by veterans. Clause 4 states that at least one of the factors set out in clause 5 must be related to any relevant service rendered by the veteran. Clause 5 lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a veteran's service. The only factor of present relevance is factor (b): experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder. The expression "severe psychosocial stressor" is defined as 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. The Tribunal found that the appellant served in the Royal Australian Navy from 7 July 1968 to 18 June 1971, and that his two trips to Vietnam on HMAS Sydney from 17 November 1969 to 5 December 1969 and from 16 February 1970 to 5 March 1970 were operational service. It was common ground that the appellant had a depressive disorder. The Tribunal described the hypothesis relied on by the appellant as follows: the condition was war caused by the chronic sea sickness experienced during his operational service, with a resulting social isolation and depression at the possibility of being unable to serve at sea. The Tribunal identified the factor relied on as that in clause 5(b) of the SoP.