Advisory from Disability Compensation Branch

No 2/2003

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

 

Federal Court Decision in Stoddart on claims for PTSD and alcohol abuse : Perceived Threat As A Severe Stressor

 

On 17 April 2003 the Federal Court decided an application brought by Mr Leslie Stoddart concerning an Administrative Appeals Tribunal decision on his Post Traumatic Stress Disorder (PTSD) and Alcoholic Liver Disease (ALD).   (Stoddart v Repatriation Commission [2003] FCA 334)

In his decision, Mansfield J had to address the definition of "experiencing a severe stressor" as found in SoP No 3 of 1999 as amended by SoP 54 of 1999  relating to PTSD and SoP 76/1998 relating to alcohol dependence.

The definition of experiencing a severe stressor in the PTSD SoP is:

"... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"

 

The definition of "experiencing a severe stressor in the Alcohol abuse SoP is:

"... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear helplessness or horror.

.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:

(i)threat of serious injury or death; or

(ii)engagement with the enemy; or

(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;"

 

The Repatriation Commission's position has been that there must be objective material to determine whether or not the veteran suffered a severe stressor.  That is, there must have been an actual event which caused or could have caused serious injury or death.  A veteran's perception of a threat from an event that did not, and could not, have caused serious injury or death has been insufficient to satisfy the requirement of "experiencing a severe stressor".

The Commission's policy has now been put into question by this decision.

In his reasons for decision (at paragraph 50), Mansfield J said:

In my judgment, the meaning of the word “threat” as used in the definition of “experienced a severe stressor” does not require the construction or meaning contended for the respondent [the Repatriation Commission] and accepted by the Tribunal.

The adjectival clause “that involved actual or threat of death or serious injury ...” explains the nature of events that must be experienced.  It contemplates an objective and assessable state of affairs.  I do not think that it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not fall within the adjectival clause.

But it does not follow that the “threat” there referred to must involve events which, judged objectively and with full information, involve an actual threat of death or serious injury.  That construction would appear to go beyond the purpose of the SoPs.

It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, [when] judged objectively and with the full knowledge of all the circumstances, in fact amount to such a threat.

 

Mansfield J. Further explained (at paragraph 51 of his decision):

It is consistent with those provisions [within the VEA] that the SoPs should be read as meaning that a claimant experiences 'a severe stressor' if that person experiences, witnesses or is confronted with an event or events which the person perceived as a threat of death or serious injury or to physical integrity, and which with that person's knowledge and in that person's experience, could reasonably be so perceived.

He concluded at paragraph 55 by saying:

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 and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.

 

This decision is binding on the Repatriation Commission and review bodies.

 

It follows that where the reasonable hypothesis applies then in the case where actual events are claimed as severe stressors, the decision process remains unchanged , ie the decision-maker must look to see whether the whole of the material points to the event having occurred as claimed by the veteran and, where the particular SoP so requires, there must have been the necessary reaction.

However a different approach must now be taken by decision makers when considering claims for PTSD or alcohol abuse based on actual events where there was no serious injury or death but the claimant perceived a “...threat of death or serious injury, or a threat to the person's or other people's physical integrity.”

Thus the task of the decision maker in reasonable hypothesis cases is now to determine:

1. Whether the material points to the claimant actually experiencing, witnessing or being confronted by an event that could objectively qualify as a severe stressor.

 

Task:

In this situation, the current process applies: the decision-maker decides whether such an event as claimed is pointed to on the whole of the material and, if he/she makes a positive finding then where applicable in the particular SoP he/she must determine whether the necessary reaction is pointed to.

 

2. Where the whole of the material does not point to a severe stressor actually occurring or not actually occurring in the way claimed.

 

Task:

The decision-maker must determine what is pointed to in the material as having occurred, and then he/she must consider:

 

1. what was the claimant's position, knowledge and experience of life immediately prior to the time of the event or events - eg. were they an experienced member of the ADF or a new recruit and what did they know about the current or unfolding situation in which they were involved at the time of the events; and
2. whether judged objectively from the point of view of a reasonable person with the claimant's position, knowledge and experience of life, would the events be capable of conveying to such a reasonable person a threat of death or serious injury or a threat to the physical integrity of the person or others - eg. was the claimant's reaction to those events reasonable having regard to all of the surrounding circumstances.  Mansfield J.'s decision is clear that idiosyncratic and personal perceptions of events which, when judged objectively, are not reasonable, do not meet the test; and
3. If the decision-maker makes a positive finding then where applicable in the particular SoP, he/she must determine whether the necessary reaction is pointed to on the whole of the material.

Information on these points should be sought early at the stage when a diagnosis is being established.

 

EXAMPLES:

The position taken for the Commission before the Stoddart decision has been that the event must have an objective reality ie the event itself could not be just "perceived", whereas the veteran's reaction to an actual event could be a subjective one.  The concern with Stoddart, not so much the decision itself, as interpretations that it may give rise to, is that on one view that there has been a weakening of the objective requirement for an actual event to have occurred.  However, the case still requires there to have been an objective event but there is now more scope for events which in the past may not have been considered capable of giving rise to a "severe stressors" to be perceived as such.  It has always been recognised on behalf of the Commission that although the event had to have an objective existence there was scope for some subjectivity within this.  The question now is how far one can take this subjectivity?

The following examples are meant to be indicative only and are offered to assist decision makers in this complex analysis.  It must always be so that individual factual situations will differ and hence the examples cannot be used as templates.

 

Example 1

Veteran driving a supply vehicle suddenly hears a loud noise and claims it was a mortar bomb exploding alongside his vehicle.  No evidence exists that this occurred but it is known that artillery was frequently fired from the position he was supplying, ie there would have been many loud noises but nothing exploding alongside the vehicle. Nothing further happened.

Comment

The material before the decision maker may suggest that the supply run was a daily task for the veteran and that the firing of artillery was by no means unusual during these runs.  In these circumstances it may be open for a decision maker to consider that a reasonable person "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," would not perceive the loud noise to be an event giving rise to the requisite threat included in the definition of a "severe stressor", and the claim would be refused.  On the other hand, if this were the veteran's first supply run and he was not familiar with the firing of artillery, then it might be open to grant the claim.

 

Example 2

Veteran on board a ship in Vung Tau Harbour working below decks and below the water line.  A scare charge is thrown overboard and veteran experiences the detonation.  Nothing further happened.

Comment

In situations where the material indicates that all naval ratings in the veteran's circumstances had had full training and briefing in the use of scare charges, and had experienced such detonations previously then it could be open to the decision maker, per the analysis used in the first example, to refuse the claim (ie as it is not reasonably perceived to be the requisite threat).  On the other hand, for a veteran without this experience it could be open to accept the claim.

 

Example 3

Veteran had a weapon pointed at him which he did not realise was unloaded.

Comment

The circumstances surrounding this event need to be very carefully considered.  In this situation, a reasonable person "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," might have the same perception of threat as they would from a loaded weapon and thus it would be open to view this as a severe stressor.  This would depend on the particular facts of the case.  This was also the case in the pre-Stoddart regime, ie there is an event that objectively occurred that can give rise to a "severe stressor".  This example illustrates the difficulties with the inter -relationship between the need for an objective event and subjective knowledge.  Had it been known the weapon was unloaded, the event could not have be reasonably perceived as a severe stressor.

A protective appeal has been lodged while the Commission considers its position with respect to the law as it stands.  Until and unless the Full Federal Court finds in its favour, this decision is binding on the Repatriation Commission and review bodies.

 

 

Mark Johnson

Branch head

Disability Compensation

 

7 July 2003