Forster v Repatriation Commission

[2015] FCA 198

Facts

The applicant, Mr Kevin Forster, joined the Australian Regular Army in January 1973 when he was 15 years old, and discharged in November 1978. Mr Forster claimed he suffers post traumatic stress disorder, alcohol dependence and hypertension as a consequence of abuse and bullying during his Army service. His disability pension claim for those three conditions 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 Forster appealed to the Federal Court.

The period in which the applicant completed his trade training as a mechanic at the Army Apprentices School at Balcombe, Victoria, is relevant to this proceeding. Initially at Balcombe the applicant shared quarters with a more senior apprentice, however that apprentice’s Army service was terminated a short time later. The Tribunal accepted the applicant was subjected to abuse and bullying at Balcombe, and concluded there was a culture of bullying at Balcombe during the time the applicant was there. The Tribunal took the view that the senior apprentices who were in their second or third year of service would routinely bully or harass first-year apprentices, and during the first few months of the applicant’s service four senior apprentices were summarily discharged after one junior apprentice was hospitalised with what a contemporary newspaper described as “a broken nose and other facial injuries”. Other practices called “bastardising” or “hazing” which were accepted by the Tribunal included senior apprentices coming into the applicant’s room in the evening, upending his bed and assaulting him. The Tribunal said, more accurately, the conduct was bullying involving physical assaults, both the actual and threatened application of force, and verbal abuse. The applicant gave evidence he was “absolutely terrified” during these incidents, which occurred more than twice a week before the four senior apprentices were discharged. Other evidence confirmed objectively the nature and frequency of the bullying conduct.

Grounds of appeal

The issue before the Tribunal was whether the three conditions were defence-caused. The applicant’s notice of appeal in the Federal Court outlined the following questions of law:

Post-traumatic stress disorder

1. Did the Tribunal pose and answer wrong question/s in determining whether a “factor” exists within the meaning of cl 6 of SoP No 6?
2. Did the Tribunal fail “to make relevant consideration/s” (sic) in determining whether a “factor” exists within the meaning of cl 6 of SoP No 6?
   
   1. Did the Tribunal engage in an illogical or irrational process or processes of reasoning in applying SoP No 6?

Alcohol Dependence

3. Did the Tribunal err in law by failing to make the necessary determination or determinations pursuant to SoP No 2, as required by the Act?
4. Did the Tribunal pose and answer the wrong question or questions in determining whether a “factor” exists within the meaning of cl 6 of SoP No 2?
5. Did the Tribunal provide adequate and sufficient reasons for its application of SoP No 2, as required by s 43(2B) of the AAT Act?
6. Did the Tribunal engage in illogical or irrational process/es of reasoning in applying SoP No 2?

Hypertension

7. Did the Tribunal err in law by failing to make the necessary determination or determinations pursuant to SoP No 64, as directed by the Act?
8. Did the Tribunal engage in an illogical or irrational process or processes of reasoning in applying SoP No 64?

The Court's consideration

PTSD

The applicant contended that:

• the Tribunal misconstrued the words “torture” and “assault” within the meaning of cls 6(a) and 9(c) of SoP No 6, and therefore posed and answered the wrong legal questions; and
• the Tribunal failed to make relevant considerations in determining whether a “factor” exists within the meaning of cl 6 of SoP No 6, including that the Tribunal failed to take into account mental suffering in answering the legal questions as to whether the applicant experienced “torture” within the meaning of a category 1A stressor in cl 9(c) of SoP No 6.

The Court did not accept that the Tribunal erred on a question of law by limiting the concept of “being tortured” to the infliction of severe bodily pain. In the Court’s view, the Tribunal considered whether the bullying conduct had caused the applicant the mental anguish he described, and the Tribunal did not accept that it had because the Tribunal did not accept him as a reliable reporter of his reaction to the bullying behaviour. The Tribunal then turned to the physical consequences to see if they amounted to torture.

The applicant went on to successfully argue that the Tribunal incorrectly interpreted “serious assault” in the context of cl 9(b) of SoP No 6. The Court was satisfied that , in the assessment of whether the applicant was exposed to a severe traumatic event i.e. a category 1A stressor, the Tribunal misdirected itself about what constitutes a “serious physical attack or assault”. The Tribunal’s reasons merge the assessment of the quality of the conduct with the consequences of the conduct to the particular person. In the Court’s view, that was the error, and the Tribunal misdirected itself by focusing on the physical consequences of the bullying conduct upon the applicant. Further, to fail to take into account the claim that the consequences of the bullying behaviour produced adverse psychological consequences was itself an error on a question of law. Even if it was the case that the Tribunal did not believe the applicant himself was scared or upset at all by the bullying conduct and its anticipation (noting there was no express rejection of that claim), there was other uncontested evidence from the junior apprentices which supported the claim that the bullying conduct was traumatising. The Tribunal was not entitled to de-classify the character of the bullying conduct because it did not accept that the applicant was as traumatised as he claimed to be. As the Tribunal said itself, following Border, the characterisation of the conduct is an objective one.

Alcohol dependence

The Court noted the same definition of a category 1A stressor is used in cl 9 of SoP No 2 regarding alcohol dependence, so it concluded for the same reasons as for PTSD above that the Tribunal fell into error.

The relevant factor in 6(a) of the SoP requires that the stressor was experienced within two years of the clinical onset of alcohol dependence. The Tribunal did not make a finding regarding the exact time of clinical onset but it determined that it did not occur within two years of the asserted category 1A stressor, namely the bullying behaviour. The Tribunal indicated the relevant psychiatrist had not addressed the time of clinical onset, but one of his reports indicated it began in 1973 and had been in remission for many years but returned recently. The respondent accepted the Tribunal was in error on that matter.

Hypertension

The grounds of appeal regarding hypertension were unsuccessful.

The Court's consideration

The appeal was allowed in part. The decision under review in respect of PTSD and alcohol dependence was set aside and remitted to the Tribunal for rehearing. The decision under review regarding hypertension was affirmed.

Editorial Note

The Tribunal relied on the decision of Reeves J in Border v Repatriation Commission (No2) [2010] FCA 1430 where his Honour observed at para [50]:

[T]he definition of “a category 1A stressor” makes no express mention of the type of feelings experienced by the veteran. To the contrary, it simply states that such a stressor “means one or more of the following severe traumatic events”. Furthermore, whilst subpara (a) of the definition incorporates the experience of the veteran in the event by defining it as “experiencing a life-threatening event”, the other two subparas – (b) and (c) – focus on the inherent nature of the event concerned rather than the feelings or emotions engendered by it. Thus, they variously refer to: “a serious, physical attack”, “assault”, “rape”, “sexual molestation”, “being threatened with a weapon”, and “being held captive, being kidnapped or being tortured”. Whilst all these events would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any such subjective factor as a relevant consideration in determining whether the event falls within the definition.

The Tribunal, following Border, said that each of the elements in cls 9(b) and 9(c) of the definition of a category 1A stressor in SoP No 6 focus on the objective seriousness of the event or conduct. The Tribunal also recognised that the subjective response to an event might provide some guide as to its objective seriousness.