Linwood v Repatriation Commission

[2016] FCA 90

Facts

The applicant, Mr Mark Linwood, served between 1987 and 1997 in the Australian Regular Army. Mr Linwood applied for a disability pension for a number of conditions, including depressive disorder. Depressive disorder was rejected by a delegate of the respondent, and that decision was affirmed on review by the Veterans' Review Board (VRB). The VRB's decision was in turn affirmed by the Administrative Appeals Tribunal (the Tribunal). Mr Linwood appealed to the Federal Court.

Grounds of appeal

The applicant's original notice of appeal contained 22 questions, which were not questions of law. His notice of appeal was amended to add Question 23, which specified a question of law:

Whether, on the evidence before the Tribunal, the Tribunal's finding at paragraph [21] of the decision that there was insufficient evidence to be satisfied that the Applicant experienced a category two stressor connected with his workplace in the six months before 1996 or 1992 was manifestly unreasonable.

The Court's consideration

It was not in issue before the Tribunal that the applicant suffered from a depressive disorder. The issue was whether it was defence-caused. The Tribunal, and the Court, referred to the terms of the 2015 Statement of Principles concerning depressive disorder. The Tribunal found as a fact that the applicant had experienced "social isolation, disharmony and bullying while he was in the infantry". Given the language in which it was expressed, the Court indicated this finding was made by reference to paragraphs (a) and (c) of the SoP definition of "category 2 stressor". The finding was based on the acceptance of the applicant's oral evidence, which the Tribunal summarised in its reasons. In assessing the applicant's oral evidence, the Tribunal took into account and inferentially accepted, at least in this particular regard, a report from the treating psychiatrist, Dr Jenkins, who stated that the applicant's "capacity to present sequential coherent historical information is impaired". The Tribunal went on to examine how the SoP applied in two alternative scenarios, where the clinical onset was in 1992 or 1996:

1. Factor 9(1)(e) says the category two stressor must have occurred within six months before the clinical onset of the applicant's depressive condition. A careful review of the medical evidence shows the applicant experienced social difficulties and personal inhibitions before he joined the Army: see exhibit one at p 37. But he was ultimately allowed to enlist. While the applicant recalls having a difficult time when he served in the infantry unit, the first diagnosis of a psychiatric problem was in 1992 when he experienced the "acute transient situational disturbance". (He was also referred for psychological evaluation after a brawl in 1992 but Mr Linwood indicated in his oral evidence that the incident was not the product of any subjective distress on his part, but was an entirely reasonable response to niggling behaviour from another soldier in a bar.) Mr Linwood went on to develop more serious psychiatric issues by 1996.
   
    
2. Almost all of the examples of category two stressors that Mr Linwood described in his oral evidence occurred in the infantry unit. He left that unit in 1990, well over a year before severe psychiatric problems manifested themselves in 1992. While he spoke about failing promotion courses between 1992 and 1996, and described a sense that his superiors were treating him more harshly than his contemporaries, his recollection of this period was much less specific and prone to generalisation. I do not have sufficient evidence to be satisfied the applicant experienced a category two stressor connected with his workplace in the six months before 1996 (or even in the six-month period before he was involved in a brawl or experienced the acute transient situational disturbance in 1992).
   
   
   
   …

Question 23 of the appeal is directed at the wording of paragraph 21 of the Tribunal's reasons. In relation to the issue of "sufficient evidence", the Court indicated the material question was whether one or more of the minimum, SoP specified factors were present? Materially, all that was necessary was that there be before the Tribunal material to engender reasonable satisfaction that at least one factor had effects which were chronic in nature and caused the applicant to feel on-going distress, concerns or worry. The Court indicated at paragraph 34 that:

… a question which emerges is what evidence is necessary in an administrative review of this nature to make a finding of fact without error of law? It is such evidence which will be "sufficient".

After reviewing the relevant case law, the Court indicated at paragraph 38 that:

… to make a finding of fact for which there is no evidence is an error of law but, subject to legal unreasonableness, no error of law is entailed if there is some evidence for that finding by the administrative official or tribunal concerned. Thus Mr Linwood's question 23 can only be answered in his favour if the Tribunal's conclusion that there was no sufficient evidence to support a finding of fact that one or more of the requisite SoP "factors" was present if, having regard to the evidence which was present, an error of law is necessarily entailed in that conclusion.

The Court examined the 1992 scenario considered by the Tribunal. In the six month period which preceded the applicant's hospital admission in 1992, the Tribunal identified that he had been involved in a brawl in a bar which was "not the product of any subjective distress" (para 20 above). The Tribunal also referred to the applicant having described in evidence, in respect of the period between 1992 and 1996 and in a non-specific way, "a sense that his superiors were treating him more harshly than his contemporaries" (para 21 above). The Court noted this was not the full extent of the evidence before the Tribunal as to events in 1992 – there was also (emphasis added):

• a Royal Adelaide Hospital admission and discharge records dated 22 August 1992 regarding a suicide attempt the previous night, which noted:
  

  "Reluctant historian …some recent stressors in his life. However would not elaborate (? Assault 2/52 ago)."

• a report by a specialist psychiatrist dated 29 August 1002, which indicated:
  

  "This man's O/D was precipitated by his interview with his 2IC, but also as a culmination of events of the last 2/12.
  
  
  
  He has been socially isolated in Adelaide, withdrawn and alcohol dependent on relieving stress, particularly since his charge and debts.
  
  
  
  He is depressed and demoralised, feels unable to face being in the Army because of the O/D & social isolation."

• an entry in the 2 Field Hospital clinical notes dated 1 November 1996, including:
  

  "Took a Panadol O/D some years ago when he was found guilty of a military charge of assault."

• a medical assessment of 9 September 1997, including a summary by the examining medical officer "Depressive illness which began in 92 associated [with several suicide attempts … " and "Depression related to Army service, personal life and a personality disorder".
• two reports by Dr Jenkins dated 19 March 2013 and 17 September 2014, in which he indicated in the earlier report:
  

  "I note that a final medical board report from the Army dated 9 September 1997 indicates that Mr Linwood's depressive illness commenced in 1992 and was associated with several suicide attempts as well as psychotic features. On that particular report, I note that it indicates 'depression related to Army service, personal life, and a personality disorder'."

The Court indicated that taken collectively, and bearing in mind that the Tribunal was not obliged to apply the rules of evidence and only required to be reasonably satisfied as to matters of facts, the passages it quoted (especially those emphasised) were "sufficient", if accepted, to establish that the clinical onset of the applicant's depressive disorder was on or about 22 August 1992, and category 2 stressors (a), (c) and (d). The Court indicated at paragraph 54 that Tribunal failed to appreciate:

… there was before it some evidence which, if accepted, reasonably admitted of a conclusion that his depressive disorder was defence-caused. That was so because that material supported a factual conclusion that one or more of the requisite category 2 stressors were present before August 1992. In this sense, there was evidence which was capable of being regarded as "sufficient". To conclude that the evidence before it was not "sufficient" was, in these circumstances, manifestly unreasonable.

The Court's Decision

The appeal was allowed.

Editorial Note

The Court pointed out that it is now for the Tribunal to decide whether it ought to accept and act upon the evidence (quoted above). It is also for the Tribunal to decide whether to accept Dr Jenkins' opinions in all respects.