Adams and Repatriation Commission
[2004] AATA 684
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 684
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1054
VETERANS' APPEALS DIVISION )
Re RONALD KEITH ADAMS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date30 June 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant’s PTSD is accepted as war-caused with effect from 6 June 1999.
....................(Sgd).................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – alcohol dependence or abuse and post traumatic stress disorder – applicant witnessed an event that involved death and experienced feelings of intense helplessness and horror – severe stressor – PTSD caused by his war service – clinical onset of alcohol abuse or dependence not within two years of severe stressor – not war caused – decision set aside
Veterans’ Entitlements Act 1986 ss 9, 120(3)
Re Slattery and Repatriation Commission (1998) 52 ALD 90
Stoddard v Repatriation Commission [2003] FCA 334
Hill v Repatriation Commission (2001) 66 ALD 293
Re Potts and Repatriation Commission [2003] AATA 1126
Re Bolton and Repatriation Commission [2001] AATA 584
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Stoddart [2003] FCAFC 300REASONS FOR DECISION
30 June 2004 Mr O Rinaudo, Member Decision Under Review
1. The applicant seeks review of decisions made by the Repatriation Commission on 5 July 2000 rejecting the applicant’s claim for alcohol dependence or abuse, hypertension and depressive disorder on the basis that the conditions were not war-caused and further rejecting the applicant’s claim for anxiety/post traumatic stress disorder on the grounds that the diagnoses could not be confirmed.
2. The Veterans’ Review Board varied the decision under review on 11 October 2001 by including a diagnosis of generalised anxiety disorder and deleting the diagnosis of depressive disorder. The Board otherwise affirmed the decision under review and found that the conditions of generalised anxiety disorder, alcohol dependence/abuse and hypertension were not war-caused.
3. The applicant seeks a determination that his traumatic stress disorder (PTSD), generalised anxiety disorder, alcohol abuse/dependence, depression and hypertension are war-caused within the meaning of sections 9 and 70 of the Veterans’ Entitlements Act 1986 (“the Act”).
4. The applicant served in the Royal Australian Navy from 6 March 1964 to 5 March 1984. He has the following periods of operational service:
§25 April 1966 to 6 May 1966
§25 May 1996 to 9 June 1966
5. The applicant also rendered eligible defence service from 7 December 1972 to 5 March 1984.
6. The applicant has bilateral sensori-neural hearing loss with tinnitus as a condition accepted as service-related.
Hearing
7. At the hearing of this matter the applicant gave evidence as did Mrs Adams, Lieutenant Commander Beamish, Mr Don Beer, Commodore Mulcare, Mr Straczek, Associate Professor John McCarthy, Dr Scott Jenkins, Dr David Alcorn and Ms Yvonne Hare. In addition, the following documentary evidence was admitted into evidence.
Exhibit 1 “T” Documents
Exhibit 2 Statement of Ronald Keith Adams dated 25 March 2002Exhibit 3Supplementary Statement of Mr Adams, 19 September 2002
Exhibit 4Statement of Don Beer dated 23 February 2003
Exhibit 5Statement of Yvonne Hare dated 29 January 2003
Exhibit 6Statement of Lieutenant Commander PJ Beamish, 2 April 2003
Exhibit 7Report of Dr Scott Jenkins dated 27 March 2003
Exhibit 8Report of Professor John McCarthy dated 16 July 2002
Exhibit 9Information from National Archives dated 5 November 2002
Exhibit 10Writeway Report by Commodore P Mulcare, 28 November 2002
Exhibit 11Writeway Report by Commodore P Mulcare dated 30 May 2003
Exhibit 12Service Medical Records - 6 March 1965 to 20 April 1965
Exhibit 13Report of Dr David Alcorn dated 26 June 2003
Exhibit 14Alcohol Questionnaire and attachments, received 1 May 1997
Exhibit 15Statement of Mr JH Straczek, dated 10 October 2003
Exhibit 16Service Personnel Records dated 22 October 2003
Exhibit 17Report of Proceedings for the HMAS Jervis Bay – March 1979
Exhibit 18Bundle of photographs
Exhibit 19Map of voyage in 1966 of HMAS Melbourne
Exhibit 20Statement of Ronald Adams dated 7 December 1999
Exhibit 21Photograph of Ronald K Adams
Exhibit 22Photograph of Incident – SJ Fitzgerald (Deceased)
8. Mr Adams confirmed the evidence given in his statements at Exhibits 2, 3 and 20. Mr Adams recounts events which he said were stressful and which he witnessed during his Naval service. He stated the incident occurred when he was on HMAS Melbourne on the way to Vietnam some time around 1 or 2 May 1966. He stated he was on the Flight Deck when a Sea Venom jet broke through the arrester wire. The observer, Ted Kennell, was killed in the incident. Mr Kennell was well-known to the applicant because he was a friend of the applicant before the war. The applicant stated that their wives were friends. He said it was horrible to see Mr Kennell “spear into the ocean and then to just sail away without him”. His body was never found. He was presumed dead. He said in his statement:
“Afterwards I had to go back and remove Ted’s flight gear from his cabin. Knowing him made it worse. It was nerve shattering. I got uptight and depressed. I buried it, but deep down it has never gone away and I dream about it now.”
9. The second incident described by the applicant was when he was posted on HMAS Barbette in the Gulf. He said they had encountered a cyclone with winds up to 100 miles per hour. He said the sea was so rough that it peeled the paint off the ship’s bridge. They were on the bridge for 10 to 12 hours. He said that some waves were up to 5 or 6 metres tall. He said he was terrified that the ship would breach and go side on into the Gulf. He said the wind and the roaring seas were terrifying. He feared for his life and the life of his crew mates. He said it terrified him and he dreams of it still. He does not set foot on boats these days because of the memory and he never ventures into the ocean. He said it is too frightening. He still dreams about this incident.
10. The third incident was when he was on a boarding party on HMAS Barbette. He said this was around 22 February 1976. He said they boarded a Taiwanese trawler. He was sent over as part of a reinforced six man boarding party. He said he was armed with a 9mm Browning but standing orders in peace time were that he should keep the ammunition in his holster. The Taiwanese crew were hostile. They had ignored orders to stop and at one point had sabotaged the engines. He said he was at the helm making sure that the ship was being steered in the right direction. He said somehow one of the prisoners got loose.
11. The prisoner suddenly came upon the applicant. He said he did not see him coming. The prisoner was wielding a piece of timber (4x2) at him. He said the prisoner looked crazy and he was sure he was trying to kill him. He said he will never forget the prisoner’s eyes. The piece of wood was swinging like a baseball bat because the ceiling was so low. It was only about half a foot from his face. He said he stumbled back onto the deck holding an arm up to fend him off while trying to get his ammunition out of his holster but he could not. He said he was absolutely terrified. He said there was nowhere to go and thought for sure he was going to die because there was no-one to help. He said the whole ordeal seemed to last forever. He was saved by a shipmate who came up to the bridge and aimed his service SLR at the attacker. He said he still relives this incident. He said he does not like being in shopping centres or in crowds for the fear that someone will suddenly come upon him and attack him.
12. That applicant stated that another incident occurred while he was on HMAS Jervis Bay around 3 July 1978. He was advised that Able Seaman Fitzgerald had gone missing. He said he knew this seaman well because they had served together on HMAS Barbette. He said they drank and ate together. They were like a family. He said they had searched for him that night but could not find him. Early the next morning he was advised that someone had hung themselves in the engine room. He said he ran immediately and saw Able Seaman Fitzgerald hanging there. He was transfixed looking at him. It was horrific. He quickly ran out. He stated that he still could not get the picture of Able Seaman Fitzgerald’s face out of his mind. It still upsets him terribly.
13. The applicant stated he was involved in a second hanging incident while serving on HMAS Jervis Bay around 11 March 1979. He stated he had left dry dock and were at Port at Garden Island. He stated Naval Police had picked him up and taken him to their headquarters. He was told that someone had been killed but not how. He stated that as Coxswain it was one of his duties to identify missing persons and keep “tabs” on the men under him. He was shown the body of a person in the back of an ambulance. He did not know who it was but he knew straight away that the person had been hung, from his previous experience with his friend, Able Seaman Fitzgerald. The applicant stated that now he sees two faces.
14. A further incident occurred on HMAS Jervis Bay when Petty Officer Argie Barber had had a massive heart attack and died. There was nothing they could do to help him. He said he made a body bag out of grey PVC and he assisted in putting his friend into the bag and sewing it up. He then had to collect his belongings. He said once again he was involved in a tragic death.
15. The applicant stated he is constantly thinking about the death of these people who were friends of his. He stated at times he felt suicidal. He stated it was after the incident on the Taiwanese ship that he started to “hit the grog”. He stated before then he had only been a social drinker, drinking only a few beers after work and sometimes maybe a wine with dinner. He stated he was a normal family man. He stated he would not have been promoted to Coxswain if he had been a “boozer”.
16. The applicant stated he started to drink in 1975 and became a really heavy binge drinker. He stated he was in charge of the fridge and drank during working hours. He said he could drink up to six beers a day and no-one would know. He stated he became a cunning drinker. He stated at harbour he could easily drink ten to fifteen beers. He stated he drank to get the terrible images out of his head. He also stated he used to drink to try to get out of his moods. He stated sometimes his wife cannot sleep because of all the kicking and tossing while he is having nightmares. He stated his nights are shattered.
17. The applicant stated that in 1976 his wife had spoken to the Naval Chaplain and asked him to come and see the applicant. He stated he wanted to know what was wrong and why he was drinking so much. In the late 1970s, his wife contacted another Priest who talked to him about drinking. He stated he did not know he had PTSD so he had to turn to someone. He stated he had flashbacks all the time. He stated it could happen at any time. Suddenly he is back on HMAS Melbourne or Barbette or Jervis Bay. He stated he is aggressive, particularly on the road. He stated he often runs red lights and it takes the smallest thing to make him hostile. He stated sometimes he used to drink and drive and there were a lot of days when he would not have passed an alcohol breath test.
18. The applicant stated he had a shoulder problem for a while but it healed without treatment and he was forced to leave his work due to PTSD and drinking alone. He stated he cannot stand crowds and could not join the Vietnam Veterans’ Association as he did not want to bring back the past. He stated that PTSD and the drinking really affected his family life and put great stress on his marriage. He stated it also affected his work. He stated Dr Smith started treating him for alcohol problems in the early 1990s. He stated he had high blood pressure due to his drinking and the stress that he had experienced in the Navy. He stated he needed urgent care because of his high blood pressure. He stated he knows that the Navy was responsible for his hypertension not only due to his drinking and mental condition but because the Navy knew about it in 1983 and said nothing. The applicant stated that if they had told him about it he might have started to change his lifestyle earlier and at least asked why he had this problem and then it would not be as bad it was today.
19. In his second statement, the applicant further enlarged on the death of his friend, Ted Kennell, following on the Sea Venom accident on HMAS Melbourne. He stated he did see the incident. He stated he saw the aircraft crash and the death of his friend. He stated it was horrific and something he has never forgotten.
20. In cross-examination, Mr Adams indicated that he was not sure of the exact time or dates when he had boarded the Taiwanese shipping vessel but said that he was involved in the boarding of all five vessels apprehended by HMAS Barbette whilst he served on that ship. He confirmed the incident on Green Island and that he saw the hanging body of his friend, Able Seaman Fitzgerald. The applicant could not say why he had not advised Dr Stephensen or Dr Jenkins or Dr Alcorn about the incident aboard HMAS Melbourne when his friend Ted Kennell had been killed in the Sea Venom crash. He confirmed that he started drinking in 1964. This had increased after the death of Ted Kennell in 1966 and, whilst he was a Senior Seaman, he was drinking socially in 1971. This had become binge drinking by 1975-76.
21. Lieutenant Commander Beamish gave evidence as set out in Exhibit 6 confirming that the incidents on Green Island in Sydney, as described by the applicant, would more than likely have taken place.
22. Mrs Adams gave evidence and confirmed the matters set out in her statutory declaration at folios 68 and 69 of the “T” Documents. She confirmed that they had been married on 6 January 1968 and they had met in early 1964. She said he was then a young, happy man. She said he was a changed man when he came back from Vietnam service. She said he kept going over how he had seen Ted Kennell die. She said she saw an increase in his drinking but not to the point where he could not handle it.
23. Mrs Adams said he was aggressive towards her and was violent towards her but he was “okay towards the children”. She said he lost interest in everything about the family. She said if he wanted to drink he would drink and if he wanted to stare into space he would. She said she wanted to know what was happening to her husband and she went to the Padre. She said his drinking steadily got worse and confirmed the fight in Cairns when he was put off his ship. She said she heard about it in the hotel where she was working at the time. She said the applicant attended a psychiatrist but this was not much help.
24. In relation to the broken jaw incident, under cross-examination Mrs Adams said that she was in Sydney at the time. She said they had been out but she had left and gone home. She said he was not drunk when she left. She said she did not know what he did after she left. Mrs Adams confirmed that the applicant had been happy to be posted in Cairns. However, she said his life had changed after his time in Cairns.
25. Mrs Yvonne Hare gave evidence and confirmed the statements made by her in Exhibit 5 to be true and correct. She confirmed that the applicant had told her that he had witnessed the death of Ted Kennell. She stated that it was her impression that the experience was extremely frightening and distressing for him.
26. Mr Don Beer also gave evidence and confirmed his statement at Exhibit 4 as true and correct. He said he was on the deck of HMAS Melbourne and saw the crash of the Sea Venom when Ted Kennell had died. He said that from where they were standing they had a clear unobstructive view of the flight deck as the plane came in. He said he and the applicant saw this event happen. He said that immediately everyone on the flight deck raced over as fast as they could. He said that this was a traumatic event. However, it had affected the applicant worse because he knew the deceased well.
27. Mr Straczek, Senior Naval Historical Officer, gave evidence and confirmed his report at folios 35 and 36 of the “T” Documents. He confirmed that the report had been accumulated from the monthly reports and the ship’s log. He confirmed the incident which occurred on HMAS Barbette in February 1976. He said the Officer of the Watch keeps the log for the watch and then signs off. He said, looking at the actual log, two trawlers were intercepted at 13:28 hours fishing in a declared fishing zone. The trawlers were stopped at 14:43 hours and a boarding party boarded the trawlers at 13:54 hours. They were sailed to Thursday Island. On Tuesday, 24 February, when the ships were close to Thursday Island, the log reports that at 06:50 hours the boarding party transferred to HMAS Barbette. Mr Straczek stated he was not qualified to say what procedures were undertaken.
28. Commodore Mulcare gave evidence and confirmed the matters in his two reports at Exhibits 10 and 11. He confirmed that it was possible that the applicant had seen a body in the water off the side of the Melbourne. He said that others had seen the body. However, no-one would have known who the body was at that distance. He confirmed that there was a 10 year age difference between Ted Kennell and the applicant and that the applicant would have been about 8 years old when Ted Kennell joined the Navy. He said they would have been together for about 14 months on the ship. He said that age and rank would have been an inhibiting factor to any formal relationship having formed.
29. Professor McCarthy gave evidence and confirmed his report at Exhibit 8. In particular, at page 3 of the report, he states:
“On 22 February 1976 two large trawlers were intercepted. It seems both vessels were boarded and there is a hint there was at least passive resistance encountered on one of them. As Lieutenant Swinnerton reported:
The captain of No. 11 was somewhat opposed to being arrested, and it was necessary for a reinforced Boarding Party to steer the vessel.
The extent of the captain’s opposition to being arrested is not known though it is recorded the voyage to Thursday Island was ‘uneventful’.”
30. The applicant was recalled to give evidence in relation to the ship’s log which had been produced. The applicant stated that he had finished his watch early so that he could have a rest before going on the boarding party of the trawler. He said, as a normal rule, the Coxswain steers the ship into harbour. He said, however, on this occasion he was on the fishing boat.
31. Dr Scott Jenkins gave evidence confirmed he had been a psychiatrist for eleven years. He has a practice in Bundaberg. His reports are dated 4 July 2001 and 27 March 2003. He said he is having monthly visits with the applicant now. He said it took him some time to get a true picture. He said that alcohol was masking the applicant’s true symptoms. He considered the applicant was suffering from alcohol abuse and post traumatic stress disorder. He said he had had regard to the Statements of Principles (SoPs) when considering this diagnosis.
32. Dr Jenkins confirmed that the applicant is suffering from alcohol abuse. He said the applicant started drinking in 1966 or so and worsened from 1976. Dr Jenkins said that over time lots of things had come out since he first saw the applicant. He said that the plane crash incident had come out in November 2001. He said there was no doubt in the applicant’s wife’s mind of the applicant’s alcohol abuse.
33. Dr Alcorn gave evidence and confirmed his report at Exhibit 13. In relation to the death of the pilot of the aircraft on HMAS Melbourne (referred to in his report as “Event #1”), Dr Alcorn states:
“Having regard to the subject’s history, examination findings and the collateral materials, I am unable to establish the presence of Post-traumatic Stress Disorder as a result of Event #1.”
34. In respect of the happenings on the Taiwanese fishing trawler whilst the applicant was attached to HMAS Barbette (referred to in his report as “Event #2”), Dr Alcorn states:
“…If a tribunal found that the subject’s self-report was unreliable, in my opinion, NO service-related psychiatric diagnosis would apply.
Conversely, if an (appellate) tribunal revisiting issues of fact made a determination that the subject’s self-report was accurate and reliable, the psychiatric diagnostic considerations listed below would be relevant.”
35. In relation to the finding of Able Seaman Fitzgerald hanging in the engine room (referred to in his report as “Event #3”), Dr Alcorn sates:
“Assuming that the subject’s self-report about this event is correct (in contrast to the Veterans Review Board observations), it is my opinion that Event #3 is unlikely to have produced a Post-traumatic Stress Disorder de novo, but may have contributed to a permanent aggravation.”
36. Dr Alcorn describes the second suicide (“Event #4”) as:
“The second suicide involved an unknown seaman on 12 March 1979 when he was asked to view the body to attempt identification (Event #4). He did not know this man; however, this was stressful as it revived memories of the previous suicide.”
In respect of this incident, Dr Alcorn states:
“However, assuming that the subject’s self-report about this event is correct (in contrast to the Veterans Review Board observations), it is my opinion that Event #4 is unlikely to have produced a Post-traumatic tress Disorder de novo, but may have contributed to a temporary exacerbation.”
37. In respect of alcohol abuse, Dr Alcorn states (at page 7 of his report):
“The subject’s history and the collateral materials indicate a longstanding history of alcohol abuse. The subject has provided a history of increased levels of alcohol use following Events #1-4. However, I note that the subject has previously signed (but disavowed) a document stating that alcohol use problems commenced in 1971.”
38. Dr Alcorn, under cross-examination, stated that if the Taiwanese fishing boat incident were accepted, then this would constitute a stressor. He accepted that it would meet the relevant SoP if the self-reporting is accepted. He stated there was no notation of the applicant’s reaction to the Able Seaman Fitzgerald incident. He stated this was not in the same league as the Taiwanese fishing boat incident. He stated he usually did not see people who have fluctuating levels of distress. He stated that as the applicant had been in private sector employment for ten years he would have expected that the applicant would have had problems during this period. However, he stated, it is possible to continue to work with severe PTSD. He stated he did not have notes about what treatment Dr Jenkins was giving the applicant for alcohol abuse but it appeared not to be effective.
Submissions
39. In submissions, Mr Harding of counsel representing the applicant, confirmed that the applicant was born on 21 March 1946; that the first event, the death of Ted Kennell, occurred on 28 April 1966; that the second event, the attack by the Taiwanese fishing captain, occurred in January 1976; that the third event, when the applicant witnessed Able Seaman Fitzgerald handing in the engine room, occurred on 3 January 1978; and that the fourth event, the identification of the hanged sailor in Sydney, occurred on 11 March 1979. The diagnostic labels applicable to the applicant are:
§PTSD
§Alcohol abuse/dependence
§Generalised anxiety disorder
§Depressive disorder
40. Mr Harding stated that each of the events constituted a stressor and confirmed that in respect of PTSD the three elements were present for a severe stressor which included “experienced”, “witnessed” and “confronted”. The second element requires that, objectively, the event involved actual or threatened death or serious injury or threat to the physical integrity of self or others and, thirdly, that the person’s response to the event must have “involved intense fear, helplessness or horror”.
41. Mr Harding referred the Tribunal to the decision of Re Slattery and Repatriation Commission (1998) 52 ALD 90 which found that:
“The words ‘witnessed’ suggests the persons was present at the event … the word ‘experienced’ suggests the person observed or encountered such an event and the word ‘confronted’ that he or she was faced with such an event.”
Plainly, if the applicant’s version of events is accepted there is no question that he “experience”, “witnessed” and was “confronted” with the relevant events.
42. Mr Harding also referred the Tribunal to the Federal Court decision of Stoddard v Repatriation Commission [2003] FCA 334 and in particular paragraph 51 which states:
“…The adjectival clause ‘that involved actual or threat of death or serious injury …’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact 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…”
43. Mr Harding then submitted that each of the relevant events falls within the definition of “severe stressor”. Mr Harding noted that Dr Jenkins considered that each of the events falls within this definition. Dr Alcorn considered that second, third and fourth events fall within the definition.
44. Mr Harding also referred the Tribunal to the decision of Hill v Repatriation Commission (2001) 66 ALD 293 where the applicant described his feelings of seeing a pilot drown as follows:
“I guess it was the confusion, feeling of confusion. I could see it happening there, it wasn’t happening to you but it as (sic) happening to somebody and you couldn’t do anything about it…”
It was submitted, in relation to this case, that the Tribunal had found that this event did not satisfy the criteria of the SoP because the applicant did not respond with the requisite feeling of intense fear, helplessness or horror. The Federal Court found that the Tribunal’s decision was wrong in that the applicant plainly had described experiencing feelings of helplessness stating that it would be a strangely insensitive person who witnessed a person being drowned who did not experience intense helplessness.
45. Mr Harding submitted that the SoP relating to alcohol dependence or alcohol abuse required that the person suffer from a psychiatric disorder at the time of onset or have experienced a “severe stressor” within the two years before the clinical onset of alcohol dependence or alcohol abuse.
46. Mr Harding submitted that the definition of “severe stressor” is the same as that contained with the SoP for PTSD.
47. For generalised anxiety disorder, the SoP requires that the person experienced a “severe psychosocial stressor” within the two years before the clinical onset of anxiety disorder. The SoP defines experiencing a “severe psychosocial stressor” to mean:
“An identifiable occurrence that evokes feelings of substantial distress in an individual, for example being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss in such as divorce or separation, loss of employment, major financial problems or legal problems.”
48. Mr D McAninly, representing the respondent, conceded that the correct diagnosis of the conditions is PTSD and alcohol dependence or alcohol abuse. Mr McAninly confirmed that these were encompassed by the SoPs for PTSD - Instrument No 3 of 1999 for operational service and Instrument No 4 of 1999 for eligible service, and for Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998 and Instrument No 77 of 1998 respectively.
49. With respect to first event, Mr McAninly submitted that:
“…the necessary requirement of the Statement of Principles for post traumatic stress disorder, Instrument No 3 of 19999 have not been met. The respondent submits that factor 2(b)(A)(i) is not met as it is required that ‘the person’s response involved intense fear, helplessness, or horror’.”
The Tribunal was referred to the decisions of Re Potts and Repatriation Commission [2003] AATA 1126 and Re Bolton and Repatriation Commission [2001] AATA 584.
50. With respect to the second event, the incident on the Taiwanese fishing boat, Mr McAninly submitted “that as the relevant standard of proof in this incident is balance of probabilities, as this was on eligible service, the relevant standard of proof is not satisfied”.
51. With respect to the third event, again Mr McAninly submitted that the requisite standard of proof, that of balance of probabilities, is not satisfied and, in respect of the fourth event, he submitted that the relevant incident did not meet the test of “stressor” for the SoPs. The claimed incident cannot be related to eligible service. Mr McAninly made the following comments with respect to a diagnosis of alcohol dependence or alcohol abuse noting that “Incident 1 fails on the basis of lack of response necessary in the Statement of Principles to the stressor” and “Incidents 2-4 on balance of probabilities must fail”, having regard to inconsistencies in the evidence, the lack of support evidence, the lack of appropriate reactions of the applicant.
Discussion and Evidence
Diagnosis
52. Initially, the applicant made application for acceptance of PTSD, alcohol dependence or abuse, generalised anxiety disorder and depressive disorder as war-caused. The respondent has conceded that the correct diagnosis is PTSD and alcohol dependence/alcohol abuse. The applicant’s claims were based largely on the report of Dr Scott Jenkins. However, in his report of 27 March 2003, Dr Jenkins notes:
“I believe that this gentleman’s alcohol abuse and anxiety disorder were in fact caused by, not clinically worsened by the stressors that he experienced while on defence service.
The only remaining issue is the fact that he has had a previous report diagnosing Post Traumatic Stress Disorder whereas my original report reflected a Generalised Anxiety Disorder.
I would have to say at this stage that my initial diagnosis was incomplete…
Although the technical difference between Post Traumatic Stress Disorder and Generalised Anxiety Disorder is small, I believe that the single diagnosis of PTSD is now more likely to accurately reflect Mr Adams’ mental state. I believe that PTSD is directly related to his Tours of Duty and were significantly contributed to by the events which he describes.”
53. Accordingly, the Tribunal determines that the correct diagnosis in this case is PTSD and alcohol dependence/alcohol abuse.
Causation
54. The Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 laid out the approach which must be followed in these cases. Firstly, the Tribunal must determine whether the material before it gives rise to an hypothesis connecting the injury with the service rendered. This test has a very low threshold: see Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
55. I am satisfied there is an hypothesis connecting the applicant’s PTSD and alcohol dependence/alcohol abuse with his service.
56. Next, the Tribunal must ascertain whether an applicable SoP exists. Here there is Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) which deals with PTSD. The SoP for alcohol dependence and alcohol abuse is Instrument No 76 of 1998.
57. Step 3 of Deledio requires the Tribunal to determine if the applicant’s version of events fits the SoP. Proof of facts is not an issue at this point. If the applicant’s story fits the SoP then the hypothesis raised in the first step is reasonable. The applicant seeks to rely upon factor 5(a) of Instrument No 3 of 1999. That Instrument relevantly states:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder… with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; …”
58. The key term is defined further in the Instrument:
“‘experiencing a severe stressor’ means 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 another person’s, physical integrity.”
59. It should also be noted that for the purposes of diagnosis, paragraph 2(b)(A)(ii) of the SoP requires that the person’s response to the stressor involved intense fear, helplessness or horror.
60. For alcohol dependence or alcohol abuse, the relevant factor is factor 5(b) which states:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse … with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;…”
61. “Experiencing a severe stressor” is further defined to mean 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 or other person’s physical integrity which event or events might evoke intense fear, helplessness or horror and includes threat of serious injury or death or engagement with the enemy or witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
62. The Federal Court requires that the Tribunal take a subjective/objective approach to severe stressors. In Stoddart v Repatriation Commission [2003] FCA 334, Mansfield J laid out the appropriate test. He said:
“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 of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”
Stoddart was approved on appeal to the Full Federal Court Repatriation Commission v Stoddart [2003] FCAFC 300.
63. The incident relevant to operational service in this case is the death of the pilot, Ted Kennell. It is conceded that the applicant would have witnessed this incident and at least would have realised that the pilot had drowned. The pilot was a friend of his. Accordingly, in respect of this incident, the Tribunal is satisfied that step 3 of the Deledio principles has been met. The applicant has raised a reasonable hypothesis connecting the applicant’s PTSD with his war service.
64. Step 4 of the Deledio principle requires that if a reasonable hypothesis is raised, then the applicant must succeed, unless the respondent can prove beyond a reasonable doubt a necessary fact or facts stated by the applicant are not correct.
65. There is no doubt that this incident occurred. It is a matter of history. The only issues are whether the applicant witnessed the event in the way that he said he did and whether he was friends with the pilot. Corroborating evidence confirms that, although there was an age difference between the deceased and the applicant, they clearly knew each other and had had some time together on the ship (some fourteen months) to renew that friendship. It seems that rank and age may have been factors in the level of friendship, but it is clear that there was a friendship.
66. Mr McAninly submitted that the applicant may not have witnessed the accident in the way he said he did. He was not on duty. However, it seems clear from the evidence of Mr Beer that the applicant did witness the accident and would have known that it was his friend, Mr Kennell, who was the pilot. In the Tribunal’s view, this incident would have involved actual death and would have evoked feelings of intense helplessness and horror in the applicant. Accordingly, the Tribunal is not satisfied, beyond reasonable doubt, that the events did not occur in the way described by the applicant. Accordingly, in respect of PTSD, the Tribunal is satisfied that the applicant meets the requisite standard.
67. However, there is no evidence to substantiate that the applicant had the clinical onset of alcohol dependence or alcohol abuse within two years of this incident and, accordingly, the Tribunal is satisfied beyond reasonable doubt that the applicant does not meet the test with respect to alcohol dependence or alcohol abuse.
68. In respect of the other three events, they all occurred during the applicant’s eligible service and, accordingly, a different standard or proof applies. Pursuant to section 120(3), the standard of proof applicable to these incidents is balance of probabilities.
69. In respect of the second incident, the Taiwanese trawler incident, the Tribunal is simply not satisfied, on the available evidence, that the events took place as described by the applicant or at all. Whilst it is a matter of record that HMAS Barbette did intercept Taiwanese trawlers at about the time the applicant described, there is no evidence whatsoever to substantiate the applicant’s version of events, in particular, that he was attacked by the Captain of the Taiwanese vessel with a large lump of wood in circumstances where he was fearing for his life. There is simply no record that any event of this nature took place during the operation. Accordingly, in respect of this incident, the Tribunal does not consider that it contributed, with respect to the applicant’s PTSD or alcohol dependence/abuse.
70. With respect to the third incident, the viewing of the hanged body of Able Seaman Fitzgerald, the Tribunal is satisfied that this event took place as described by the applicant. With respect to eligible service, the relevant SoPs are Instrument No 77 of 1998 for alcohol dependence or alcohol abuse and Instrument No 4 of 1999 (as amended by Instrument No 55 of 1999) for PTSD. However, the factors relevant in both SoPs are the same as for operational service.
71. Whilst the Tribunal acknowledges that the sight of the hanged seaman would have been traumatic, the Tribunal does not consider that the event would have been sufficient to meet the test of “severe stressor” under the relevant SoPs. Accordingly, the applicant’s claim in respect of this incident must fail.
72. Whilst the Tribunal has some doubt about the actual circumstances relating to the fourth event, the viewing of the deceased body at Sydney, the Tribunal on balance accepts the applicant’s version that he was shown the body for identification purposes. However, again, whilst the Tribunal considers that this event would have been traumatic, the Tribunal does not consider that it meets the tests set out in the relevant SoPs as a “severe stressor” and again the applicant’s claim in respect of this event must fail.
Decision
73. Accordingly, for the reasons given above, the Tribunal is satisfied that the applicant’s PTSD is attributable to his operational service and to this extent the applicant’s application is successful.
74. The Tribunal sets aside the decision under review and in substitution therefor decides that the applicant’s PTSD be accepted as war-caused with effect from 6 June 1999.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDates of Hearing 19, 20 and 21 November 2004
Date of Decision 30 June 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr D McAninly, Departmental Advocate
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