Case: Hill v Repatriation Commission [2005] FCAFC 23
Outcome: referred to
In reaching the conclusion that it did, there was no dispute that the Tribunal considered that it should follow and, in fact, did follow the Deledio methodology. As to the first two steps in the Deledio methodology, the Tribunal was satisfied that: (1) " a hypothesis connecting the injury or disease of anxiety disorder and alcohol dependence or alcohol abuse ...with service [did] exist because there [was] material pointing to it [and that] hypothesis raised emerged ... obviously and directly from the evidence... (refer Hill v Repatriation Commission [2005] FCAFC 23 at paragraph 98) "; (2) there were SoPs with respect to generalised anxiety disorder (No. 1 of 2000) ("the Anxiety SoP") and alcohol dependence and alcohol abuse (No. 76 of 1998) ("the Alcohol SoP"); (3) with respect to the Anxiety SoP, the applicable factor was " experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder" : factor 5(a)(ii). The expression " severe psychosocial stressor " was defined in para 8 of the Anxiety SoP to mean " 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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems "; (4) with respect to the Alcohol SoP, the applicable factor was " experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse" : factor 5(b). 19 The third step of the Deledio methodology required the Tribunal to examine if the hypothesis was reasonable. The Tribunal found that the hypotheses were reasonable on the grounds that there was material pointing to the veteran having experienced a " severe psychosocial stressor " and a " severe stressor " within two years immediately before the clinical onset of the respective disorders. 20 The fourth step of the Deledio methodology required the Tribunal to make findings of fact to determine whether it was satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. The Tribunal made the following findings of fact: (1) the veteran drank minimum quantities of alcohol on an infrequent basis both prior to enlistment and prior to commencing his service in Vietnam; (2) during his service in Vietnam, he " became apprehensive and fearful by a number of circumstances to which he had no direct involvement but by reason of his location he was concerned that they could get [him] " (original emphasis); (3) a helicopter incident in Vietnam was the most significant event to which the veteran was exposed and prior to that helicopter incident, the veteran was emotionally vulnerable. The helicopter incident was described in the following terms: "the [veteran] was a passenger ... where he heard someone say " we've been hit " and the helicopter suddenly lurched. Door gunners then opened fire from each side of the helicopter, it descended quickly, the [veteran] thought that it would crash and on landing, an inspection revealed the presence of a bullet or a bullet hole. Whilst there were slight variations in that account of the episode by the [veteran's] colleagues .., the incident itself and the circumstances immediately before landing, were corroborated. Indeed, [one colleague] said that he " feared that we would not make it " and [another colleague] said that he observed the [veteran] to be shaken. [The second colleague] said that he continues to have nightmares and dreams about that incident." (Emphasis original) (4) as a result of the helicopter incident, the veteran significantly increased his alcohol consumption " to help him cope and to help him sleep" ; (5) the helicopter incident was, within the meaning of the respective SoPs, a " severe psychosocial stressor " and a " severe stressor " and did occur within two years of the clinical onset of the respective diseases. In particular, the Tribunal was satisfied that the veteran, within two years of the helicopter incident, exhibited features or symptoms which would have caused a medical practitioner to diagnose the relevant disease or injury as then being present; and (6) the veteran's injuries of anxiety and alcohol abuse or alcohol dependence were war-caused.