FEDERAL COURT OF AUSTRALIA Freeman v Repatriation Commission [2002] FCA 576 JUDICIAL REVIEW – review of decision of Administrative Appeals Tribunal – whether error in the process used to determine a diagnosis of post-traumatic stress disorder by reference to the Statement of Principles No. 15 of 1994 (Post Traumatic Stress Disorder) – whether the criteria in par 4(a)(i) of the Statement of Principles No. 15 of 1994 (Post Traumatic Stress Disorder) is to be applied objectively – whether the Tribunal was bound to accept uncontested medical evidence regarding the diagnosis of post-traumatic stress disorder. Veterans' Entitlements Act 1986 (Cth) ss 120(1), 120(3), 120A(3) Statement of Principles Instrument No. 15 of 1994 (as amended by Instrument No. 225 of 1995) (Post Traumatic Stress Disorder) pars 4(a)(i), (ii) Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence) par 1(a) Repatriation Commission v Deledio (1998) 83 FCR 82 followed TERENCE HENRY FREEMAN v REPATRIATION COMMISSION V 707 OF 2000 NORTH J 9 MAY 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 707 OF 2000 BETWEEN: TERENCE HENRY FREEMAN APPELLANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: NORTH J DATE OF ORDER: 9 MAY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. the appeal is dismissed; 2. the appellant is to pay the respondent's costs of and incidental to the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 707 OF 2000 BETWEEN: TERENCE HENRY FREEMAN APPELLANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: NORTH J DATE: 9 MAY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Before the Court is an appeal against a decision of the Administrative Appeals Tribunal (the AAT) constituted by Senior Member Commodore B G Gibbs, AM, RAN (Retd) made on 21 August 2000. 2 The appeal is brought by Mr Freeman, who served in the Navy from 9 July 1967 until 9 October 1974. Mr Freeman applied for a pension under the Veterans' Entitlements Act 1986 (Cth) (the Act). He claimed to suffer from post-traumatic stress disorder (PTSD) and psychoactive substance abuse caused by service in Vietnam and arising from an incident which occurred on 6 November 1971. 3 The Veterans' Review Board determined, on 24 February 1999, that the PTSD and the substance abuse conditions were war caused, and hence, Mr Freeman was entitled to a pension. In the decision under appeal the AAT reversed this determination, and held that the PTSD and substance abuse conditions were not war caused. 4 The decision of the AAT is set out with great clarity. It extracts the relevant statutory and related provisions, it carefully defines the issues to be considered by the AAT, and it then records the submissions of each of the parties on these issues. The decision then states the conclusion of the AAT as to the proper approach to be taken to the issues, it proceeds to examine the evidence in the light of the approach defined, and it states the conclusions. 5 The major arguments relied upon by Mr Freeman in this appeal were also relied upon by him before the AAT. 6 Because the decision sets out the background, issues, evidence, and reasoning so clearly, and because the major arguments on appeal were also relied upon before the AAT, it would be needlessly repetitious for me to set out these matters in these reasons. I intend to adopt the unusual approach of referring the reader to that decision rather than to attempt to summarise its contents now. 7 Consequently, I am able to move directly to consider the arguments on appeal. 8 The notice of appeal asserted thirteen errors of law. The document lacked proper focus and failed to identify with the necessary clarity the grounds upon which the decision of the AAT was challenged. In order to properly understand the real basis of the appeal, I directed that an explanatory document be filed by the appellant. That document, in effect, telescoped many of the original grounds into several major categories. The written and oral submissions then further condensed the issues. I turn now to the grounds which were eventually advanced. error in the process used to determine the diagnosis of ptsd 9 The AAT must find that a disease is war caused unless it is satisfied beyond a reasonable doubt that there is no sufficient ground for making the determination (s 120(1)). It may only be so satisfied if the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the service rendered by the applicant (s 120(3)). For the purposes of this case, an hypothesis is only reasonable if there is in force a Statement of Principles (SoP) that upholds the hypothesis (s 120A(3)). 10 The SoP is, thus, made by statute a crucial part of the determination of causation. 11 But before a decision maker reaches the question of causation, the decision maker must determine that the applicant suffers from the disease claimed. 12 Mr Croyle, who appeared as counsel for Mr Freeman, contended that the AAT erred in law by giving the SoP relating to PTSD a role to play in determining, not only the causation question, but also the question whether Mr Freeman suffered from PTSD. He contended on the appeal, as he had done before the AAT, that in order to establish a diagnosis of PTSD, the AAT had to consider whether Mr Freeman suffered a disease of that generic type, and not whether he suffered PTSD as defined in the SoP. In failing to follow this process, he contended, the AAT adopted a wrong approach, and thereby erred in law. 13 The AAT described its approach to the diagnosis question as follows: "… in determining whether Mr Freeman has a diagnosis of PTSD, the Tribunal must be reasonably satisfied that all the diagnostic criteria (a) through (f) inclusive in the definition of PTSD contained in the relevant SoP, are met." 14 The criteria in par 4(a)(i) and (ii) of the definition of PTSD in the Statement of Principles Instrument No. 15 of 1994 (Post Traumatic Stress Disorder) (the SoP (PTSD))required that: "(a) the person has been exposed to a traumatic event in which: (i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and (ii) the person's response involved intense fear, helplessness, or horror;" 15 The AAT examined the evidence and found on the facts that the event upon which Mr Freeman based his claim did not involve actual or threatened death or serious injury or a threat to the physical integrity of Mr Freeman or others. The AAT also found that Mr Freeman did not react with intense fear, helplessness or horror. Consequently, Mr Freeman's case did not fall within the SoP (PTSD). The AAT concluded that, as a result, Mr Freeman did not suffer PTSD for the purposes of the application of the Act. 16 However, importantly for this appeal, the AAT went on to consider the application on the assumption that there was a diagnosis of PTSD independently of the elements presented by the SoP (PTSD). It said: "While the Tribunal finds that, if there is a diagnosis of PTSD within the meaning of the SoP, the material before it points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Freeman, it is in the Tribunal's opinion that the hypothesis, however, is not a reasonable one. It is not reasonable because it is not consistent with the 'template' to be found in the SoP. It is not consistent because the hypothesis raised does not contain the factor relied upon, namely 'experiencing a stressor prior to the clinical onset of post traumatic stress disorder'. The reason the hypothesis does not contain the factor relied upon is precisely the same as the reason or reasons set out above, as to why the Tribunal has determined that a diagnosis of PTSD within the terms of the SoP, does not exist." 17 The result is that, even if the AAT erred in the way Mr Croyle argued, the error was immaterial because the AAT separately found that the hypothesis alleged to connect the disease with Mr Freeman's war service was not reasonable. That finding alone meant that Mr Freeman could not succeed. 18 In dealing with this aspect, the AAT set out the proper approach as enunciated in Repatriation Commission v Deledio (1998) 83 FCR 82 and there is no reason to suppose that it did not follow the course which it recognised as governing the consideration of the causation issue. the objective approach to the criteria in paragraph 4(a)(i) 19 The AAT said: "As was held in Re Budworth, …the criteria set out in paragraph (a) of the SoP definition of PTSD is to be approached objectively, whereas the criteria set out in paragraph (b), being the 'response' criteria, permits of subjective analysis." 20 It is clear from the discussion which follows the above extract that the reference to par (a) is intended to be a reference to par (a)(i) and the reference to par (b) is intended to be a reference to par (a)(ii) of the SoP (PTSD). 21 Mr Croyle argued that the AAT erred in taking an objective approach to the criteria in par (a)(i). 22 Again, whether this is so or not is of no consequence because the AAT found that Mr Freeman did not satisfy the criteria in par (a)(ii). The latter finding was a finding of fact and was not attacked. In any event, the AAT committed no error of law in making the findings of fact upon which the conclusion was based. Once the AAT concluded that Mr Freeman did not satisfy par (a)(ii) it was of no moment whether he satisfied par (a)(i). His application could not succeed unless he satisfied all the criteria in both paragraphs. the medical evidence 23 Before the AAT were medical reports from Ron Thompson, a registered psychologist, Dr Whitaker, a consultant psychiatrist, and Dr Tanaghow, the Director of Psychiatry at Goulburn Valley Base Hospital. The reports all concluded that Mr Freeman suffered from PTSD. 24 Mr Croyle contended that the AAT was bound to accept the medical evidence for the purposes of the first stage of the inquiry, namely, in determining whether Mr Freeman suffered from PTSD. The AAT was not entitled, he said, to come to an independent opinion on a matter of medical expertise where there was no disagreement among the doctors. 25 Again, the problem with this argument is that, even if it is correct, it only establishes the diagnosis which the AAT was prepared to assume for the purpose of the alternative reasoning concerning the PTSD condition. It does not answer the independent failure of Mr Freeman's case on the causation question. So, again, any such error made by the AAT would have been immaterial. conclusion concerning ptsd 26 I have found that none of the arguments raised in relation to the PTSD condition, even if they were to be accepted, would overcome the AAT's conclusion on the causation issue. That is not to say that the arguments should be accepted. It is unnecessary to determine whether they are correct or not. They raise matters of potential importance in this area of the law. For the authoritative resolution of those arguments it is better to await a case in which those issues are determinative of the case. 27 Mr Freeman chose, apparently on advice, in part, from his doctors, to make his claim on the basis that he suffered PTSD. The AAT found that such a claim was not made out. However, the medical reports disclose that Mr Freeman has suffered a psychiatric condition. It may be that the condition entitles him to a pension under the Act. But if that is so, he will need to rely on some other category of entitlement. psychoactive substance abuse or dependence 28 The factor which had to exist to support Mr Freeman's claim that he suffered substance abuse is set out in par 1(a) in the Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence) (the SoP (psychoactive substance abuse) as follows: "experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;" 29 "Stressful event" is defined in the SoP (psychoactive substance abuse) as: "… an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress." 30 The AAT concluded: "While the Tribunal determines that the material before it points to a hypothesis connecting psychoactive substance abuse or dependence with the circumstances of the particular service rendered by Mr Freeman, the Tribunal has formed the opinion that the hypothesis is not a reasonable one. That is to say it does not contain either the factor relied upon, or any one or more of the alternative factors set out in the SoP. That being so, the claim must fail. It is the Tribunal's finding that the example 'such as combat' provided in the definition of 'stressful event', is intended to convey the severity of the event comprehended by the definition. Given the event described by Mr Freeman, and taking an objective view of it, the Tribunal has formed the view that this part of the definition is not satisfied." 31 The conclusion here expressed by the AAT was derived from the lengthy analysis of the facts which the AAT conducted. This analysis included resolving a conflict between the evidence of Mr Freeman and the evidence of Mr McNaught. The challenge to the decision of the AAT on the substance abuse aspect is, in essence, a quarrel with the fact finding made by the AAT. But no error of law is disclosed in the approach of the AAT. The findings of fact upon which this conclusion was based were open to the AAT on the evidence before it. 32 In the result, the appeal must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 9 May 2002 Counsel for the Appellant: Mr M J Croyle Solicitor for the Appellant: Williams Winter and Higgs Counsel for the Respondent: Ms A McMahon Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 December 2001 Date of Judgment: 9 May 2002