Case: McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791
Outcome: cited
Tribunal found in summary as follows: The Tribunal's task was to decide the appropriate invalidity classification of Mr House on 19 November 2004, which was the date Mr House sought a review of his invalidity classification by the Authority. The Tribunal was required to determine, as at 19 November 2004, the percentage of Mr House's incapacity in relation to civil employment, and the appropriate classification in respect of that incapacity for the purposes of s 30 and s 34 of the Act. The Tribunal was required to give consideration to the impairment for which Mr House was retired. The Tribunal found that the primary reason for Mr House's discharge was his alcoholism condition which was interrelated with his personality condition (at [90]). Accordingly, alcoholism was the prescribed physical or mental impairment for the purposes of s 34 of the Act. The Tribunal was required to consider whether the personality disorder of Mr House should be accepted as being one of his prescribed physical or mental impairments which was a cause of the incapacity by reason of which he was retired. In so considering, the Tribunal found: It had long been recognised that Mr House had a personality disorder. There was considerable medical evidence that this disorder was part of Mr House's "constitution", and that the personality disorder was present at the time of his enlistment. However under the scheme of the Act a constitutional condition may itself constitute a prescribed physical or mental impairment (at [94]). This is recognised by s 28 of the Act. In order for the personality disorder of Mr House to constitute a prescribed impairment there must be some evidence that this condition rendered Mr House incapable of performing his duties (at [95]). Evidence that the personality disorder of Mr House could "impact" upon his employment was given by one of the psychiatrists, Dr Reddan. There was evidence before the Tribunal that the personality disorder of Mr House was a significant condition. The Tribunal interpreted evidence of Dr Reddan as meaning that Mr House's personality condition was as significant as the alcohol condition as an impairment, and that both conditions could impact on Mr House's employment (at [99)]. Accordingly, the Tribunal concluded that the personality disorder of Mr House was one cause of his retirement, and that for the purposes of s 34(1B)(a) of the Act, alcoholism and the personality disorder of Mr House were his prescribed physical and mental impairments (at [99]-[100]). The Tribunal referred to s 34(1A) of the Act which provides that, in determining the percentage of incapacity in relation to civil employment of a recipient member, the Authority shall have regard to, inter alia , the kinds of civil employment which a person with skills, qualifications and experience referred to in s 34(1A)(a) of the Act might reasonably undertake. The Tribunal accepted as relevant the kinds of civil employment submitted by the Authority, but also accepted a number of categories nominated by Mr House. Specifically the Tribunal found that: ...the kinds of civil employment which Mr House with skills, qualifications and experience referred to in section 34(1A)(a) of the Act might reasonably undertake would be as a driver, mobile plant operator, labourer, store person, mining and construction labourer, security officer, powder monkey, sub-contractor in mining and construction, and foreman in any of those fields. (at [113]) The Tribunal was required to have regard to the degree to which any physical or mental impairment of Mr House had diminished his capacity to undertake the kinds of civil employment accepted by the Tribunal. In this case the Tribunal noted that it would ordinarily examine the degree to which each prescribed impairment diminished the capacity of Mr House to undertake each of the relevant kinds of employment, but that in the circumstances it would be artificial to endeavour to determine the effect of each prescribed impairment (at [116]-[117]). In this case it would be inappropriate to simply perform a mathematical calculation by taking an average of various percentages of impairment for the kinds of employment listed. The Tribunal also noted that it was administering beneficial legislation. It was appropriate for the Tribunal to make a "value judgment" as described in McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791. The Tribunal accepted that Mr House was able to drive, that the alcoholism condition of Mr House was in remission, and that Dr Reddan had given Mr House a 30% rating on two kinds of civil employment that Mr House could reasonably undertake. The Tribunal found that the percentage of incapacity in relation to the civil employment of Mr House for the purposes of s 34(1) was 30% (at [121]). Accordingly, the Tribunal found that Mr House had a classification of Class B for the purposes of s 30 of the Act, such classification to take effect from 19 November 2004, and made the orders the subject of this appeal. The Appeal I have already set out the orders sought by the Authority in this case. The questions of law raised on the appeal are whether the Tribunal erred at law in: (1) Failing to consider a serious submission. (2) Failing to take into account a relevant consideration, ie that the applicant's condition had improved since 2001. (3) Failing to take into account a relevant consideration, ie that a person with the applicant's skills, qualifications and experience would reasonably be expected to undertake a wider range of civil employment than security officer and foreman. (4) Misdirecting itself as to the nature of the decision it was required to make, or misapplied s 34(1) of the Act; and (5) Making a statement of reasons that was manifestly inadequate. I am satisfied that these are proper questions of law for consideration by this Court. This ground of appeal adds very little to the Authority's submissions concerning the failure of the Tribunal to take into account relevant considerations. To the extent however that the Tribunal (after referring to McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 at 792) stated that it was required to have regard to the width, quality and nature of the range of employment opportunities and make a "value judgment", it appeared that the Tribunal actually did not have regard to the "width, quality and nature of the range in employment opportunities". As I have already noted, it appears that the Tribunal in making its decision as to the level of incapacity took into consideration only two of the nine employment types. It follows therefore that the Tribunal did not follow the procedure it outlined for itself as necessary. In this respect the Tribunal appears to have made an error of law. Fifth ground of appeal Mr Harding on behalf of Mr House submitted that the Tribunal made findings in respect of each of the issues under s 34 of the Act, was required to make a global assessment which is not a mathematical exercise, and was not required to give detailed explanation of the manner in which it arrived at its conclusions. While this may be true as a general proposition, nonetheless in my view some explanation is required where the Tribunal appears to make decisions which appear contrary to the weight of evidence, as is the case in relation to the Tribunal's value judgment that Mr House's level of incapacity for civil employment was 30%. I note again that the only explanation given by the Tribunal was as follows: PERCENTAGE OF INCAPACITY OF CIVIL EMPLOYMENT 121. I consider that it would be inappropriate for me to simply perform a " mathematical calculation " by taking an average of the various percentages of impairment for the kinds of employment listed above. I am also conscious that I am administering beneficial legislation. I accept the fact that Mr House is able to drive as he regularly drives his partner to appointments. I also accept the evidence of Dr John Morris who has made a realistic assessment of the ability of Mr House to be a driver. I also accept that the alcohol condition of Mr House is now in remission and Mr House is to be commended for his responsible attitude. I have already mentioned that in McGovern Deputy President R D Nicholson has stated that I am required to have regard to the width, quality and nature of the range in employment opportunities and make a " value judgment ". I have had regard to the fact that Dr Reddan, who has been called by the Authority has given Mr House a 30% rating on two kinds of civil employment that Mr House could reasonably undertake. Making a " value judgment " I find that the percentage of incapacity in relation to the civil employment of Mr House for the purposes of section 34(1) of the Act is 30%.