Avey and Repatriation Commission
[2011] AATA 152
•8 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 152
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3563
VETERANS' APPEALS DIVISION ) Re RICHARD AVEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K S Levy, RFD Date8 March 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension – Applicant had operational service with Royal Australian Navy – Diagnoses of post-traumatic stress disorder and depression – Statement of Principles not satisfied – Hypothesis of applicant not reasonable – Decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5, 6, 9, 13, 120, 120A, 196B
Evidence Act 1995 (Cth) s 79
Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504
Border v Repatriation Commission (No 2) (2010) FCA 1430
Bushell v Repatriation Commission (1992) 175 CLR 408
Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62
Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
REASONS FOR DECISION
8 March 2011 Senior Member K S Levy, RFD INTRODUCTION
1. The applicant is Mr Richard Avey, who served in the Royal Australian Navy (“RAN”) from 10 July 1963 to 27 January 1971. He had three periods of operational service during that period:
· In the Far East Strategic Reserve from 17 April 1966 to 14 September 1966;
· In South Vietnam waters from 27 March 1968 to 26 April 1968; and
· In South Vietnam waters from 21 May 1968 to 13 June 1968.
2. Mr Avey has the conditions of bilateral sensorineural hearing loss with tinnitus and malignant melanoma of the back and face, which are recognised as service-related disabilities. In January 2007, Mr Avey also applied for recognition of the conditions of lower back pain, knee pain (left and right), tinea, post-traumatic stress disorder (“PTSD”) and depression. On 17 May 2007, the Repatriation Commission decided that those conditions were not war-caused.
3. He appealed that decision to the Veterans’ Review Board (“VRB”). In view of approval of an increase to his rate of pension to 60% of the general rate from 22 July 2008, Mr Avey sought to not proceed with a review of the matter of assessment. The VRB also consented to the withdrawal of the application for review in respect of lumbar spondylosis and osteoarthrosis of both knees.[1] The applications in respect of PTSD and depression remained on foot, which the VRB determined on 28 May 2010 to affirm the original decision made by the Repatriation Commission.[2] Mr Avey now appeals to this Tribunal for a further review of that decision.
[1] T-Document 4, Folios 151 – 152.
[2] T-Document 4, Folios 191 – 199.
ISSUES
4. The parties raised the following issues for determination:
(1)Whether the psychiatric condition for the current claim by the applicant is properly diagnosed as Major Depressive Disorder;
(2)If the answer to (1) is yes, whether Major Depressive Disorder is war-caused; and
(3)If the answer to (2) is yes, what rate of pension should apply.
EVIDENCE
5. Mr Avey provided statements in his written statement of claim dated 28 September 2006; a formal statement dated 29 September 2006; a detailed 28 page statement dated 27 April 2010 (prepared with substantial assistance by his wife, Mrs Lea Avey); and a further detailed statement dated 29 October 2010. In addition, he gave oral evidence at the Tribunal, including information which he had provided to a number of psychiatrists in the course of treatment or assessment for the purposes of his claim for pension.
6. Mr Avey’s original claim referred to pain in his knees and back, hearing loss with tinnitus and melanoma[3]. He also described his hearing loss as making social interaction difficult. He said the pain from his back and knees affected his sleep and made him tired and irritable. His moods were also affected by stress and depression. His disabilities tended to make him intolerant and impatient with others. While he was treated with Zoloft for depression, it reduced his libido and also left him feeling flat and not wishing to engage in activities or socialising[4]. His stress and depression were also aggravated by the constant fear of further melanomas.
[3] T-Document 4, Folios 27 – 29.
[4] T-Document 4, Folio 35.
7. In relation to the claim for depression, Mr Avey’s written statement of 29 September 2006 deals with three incidents relevant to the present appeal:
(1)An incident on HMAS Curlew, 1966 – Mr Avey was 18 years of age at the time and was employed as a cook. He said that one incident stood out in his memory where there was a “stand off” with an Indonesian patrol boat. He recalled that “action stations” were called and he remembered thinking that he could have very easily been killed as the Indonesian vessel, although smaller, was in close range and its fire power could have very easily blown the Curlew out of the water. “The hour of fear and tension that we spent at action stations while facing off the patrol boat made a very strong impression on me and I still harbour a deep and irrational distrust of Indonesians. The potential for violent death (mine and my shipmates) became very real to me during that incident, and I have often returned to it in my nightmares”.[5]
(2)While serving on HMAS Sydney in Vung Tau Harbour, South Vietnam in 1968 – HMAS Sydney was anchored for the purpose of loading and unloading troops and stores. Mr Avey said it was in a high-risk area and he was fearful about “aerial bombardment and underwater mining” of the ship. He said he became friendly with many of the soldiers for whom he cooked and he listened to their stories. He understood the fear and horror that had affected them, and said that those stories were retained in his memory for years. Mr Avey said these contributed to the break down of his first marriage in 1970.
(3) This incident is based on similar facts to the second incident above. Both of the second and third incidents involved an overnight stop in Vung Tau Harbour.
[5] T-Document 4, Folio 19.
8. Mr Avey believed he coped well for many years after leaving the Navy, having had no contact with anyone from the defence forces until Anzac Day of 1997 when he joined other veterans in the March. He started having some problems around that time. He had joined the Vietnam Veterans’ Association in Brisbane where he attended meetings for a number of months. Mr Avey states in his written statement that meetings with the Vietnam Veterans’ Association raised bad memories for him and it made him feel worse rather than better. He discontinued his membership of that Association. He was also affected significantly by the graphic terrorist attacks on New York on September 11, 2001. He had difficulty discussing these matters with a psychiatrist.
9. In his oral evidence at the Tribunal, Mr Avey placed considerable emphasis on the incident on HMAS Curlew. He said the Indonesian patrol boat was only 100 to 200 metres away. He referred to paragraph 3 of his statement of 29 October 2010 where he said he was “horrified” about the Indonesian patrol boat. He described that patrol boat as approaching at speed and steamed parallel to the Curlew on the starboard side. He said they were ready to fire and that he then spent another 20 minutes at his post, manning a Bren gun.
10. In relation to the Bren gun, Mr Avey told the Tribunal he did not have much training but had been taught to load and fire. He said the Indonesian boat took off at speed and they tried to chase it for 15 minutes. He described to the Tribunal that this experience did not affect his job but he started drinking more heavily when he was on shore leave. Subsequent to the incident, he said he was “irritable” and at a later stage he saw a doctor in the Navy who said he was suffering from depression.
11. In the report by psychiatrist Dr Roberts, in relation to the incident on HMAS Curlew, Mr Avey had told him there was some communication between the captains of the ships which had preceded the Indonesian vessel taking off at some speed. Mr Avey then said in cross-examination that he did not know why he had said that but that he “assumed they communicated over the radio”. He then told the Tribunal no shots were fired during the incident. He also told the Tribunal that he was not told much of the circumstances and “had to guess most of this stuff”.
12. In describing the Indonesian vessel, Mr Avey said it was a Komar vessel. A photograph of this type of vessel was referred to in evidence.[6] This information was provided as part of some of the comprehensive research that Mrs Avey had undertaken in support of her husband.
[6] T-Document 4, Folio 186.
13. He was further asked about his evidence describing the weaponry on the Indonesian vessel which he said could “fire to the rear” or “fire forward”. Mr Williams, for the respondent, sought further information about this evidence. Mr Avey said he did not know the capacity of the weapons but said he “was just guessing that it might be able to rotate” as it was not like a Bren gun or Bofor gun. He had no knowledge of why the Indonesian vessel would need to come within 100 metres of HMAS Curlew. He told the Tribunal “they just came in to upset us”. He was asked whether he could see any sailors at the back of the Indonesian vessel with small arms and he replied “No” and “I don’t know”.
14. Mr Avey married his first wife, Joylene, less than two years later when he was 20 years of age and she was 16. She was pregnant at the time. The marriage lasted approximately six years.
15. The first child was born two months prematurely in February 1968.[7] Mr Avey said that the child was very ill when he was born and “there was no guarantee that he would survive”. There was significant stress on Mr Avey at that time and he was posted to HMAS Sydney a month after the child was born. He spent the first month of that posting undertaking one of two trips to South Vietnam with “the Vung Tau Ferry”. He returned to Australia for approximately one month and did a further trip to South Vietnam which took him away from home for a further three weeks. He completed his short period of service on HMAS Sydney when he arrived back in Australia after the second trip to Vietnam.
[7] T-Document 4, Folio 163.
16. There was significant stress on his marriage then, and that stress continued. Ten months later, on 15 April 1969, Mr Avey’s naval medical records show he reported with anxiety as his young wife had left him at that time. Mr Avey said “this was the first documentary evidence of both my emotional problems and our marriage breakdown”. Just over six months later, the second child was born. The stress on Mr Avey at that time was apparent as he reported after the birth of the second child “I had very serious doubts about whether I was [her son’s] biological father (as Joylene was at that time very promiscuous and seemed to take great pleasure in the fact that everybody knew about it)”. Five months later the naval medical records showed that Mr Avey took some sleeping tablets. He said he took a few tablets from what was an almost full bottle but hid the remainder in a drawer, so that his wife would think that he had taken almost the whole bottle of tablets. She took him to the hospital but he was discharged after several hours.[8] His statement records, “I don’t think this was a serious attempt at suicide but I was very upset and emotional and it was a cry for help”.
[8] T-Document 4, Folio 7.
17. A further one month later the naval medical records record “acute anxiety” In his statement, the applicant says “[B]y this time my marriage was falling apart”. These events occurred approximately late April in 1970. The records show that Mr Avey made genuine attempts to save his marriage and was very upset throughout this period. He had been crying when he reported to the naval medical centre and had persuaded his first wife to see the Padre with him, in an attempt to get greater stability in their marriage[9]. Around that time, he again took some sleeping tablets.
[9] T-Document 4, Folio 6.
18. Nine months later, on 27 January 1971, Mr Avey requested and was granted a discharge from the RAN as he was trying to save his marriage. His statement records “I had twice come home from a posting and caught Joylene in bed with another man and decided that a discharge was the only way to proceed”. Eight months after his discharge, the third child of the marriage, a daughter, was born. Mr Avey’s statement records that his first wife always claimed that he was not the father of their third child. He thought that was said merely to upset him. He remained married for approximately two more years. Mr Avey said that by September 1973 his marriage was over, stating “I came home to find no family and no furniture in the home”. He met his present wife two months later (on 11 November 1973). In February 1974, his former wife walked out and went interstate leaving the young children as his responsibility. He and his present wife moved into the house and looked after the children for six months. His first wife then returned from interstate and advised that she wanted the children back. In the interests of harmony, Mr Avey acceded to her request.[10]
[10] These quotations are from the applicant’s statement of 29 October 2010.
Medical Evidence
19. The significant medical evidence is referred to in chronological order. Firstly, Dr Wade’s report states that Mr Avey consulted him in 2002 and referred to being affected by the September 11, 2001 attacks on the United States. He told Dr Wade that this “pushed him over the edge”. Mr Avey also reported that he was not okay before that time but he just knew he wasn’t feeling well. Mr Avey also reported that he marched in the Anzac Day March for the first time in 1997. In cross-examination he was asked if he had ever had a mental illness before 1998. The applicant responded “Yes, once”. I note the report of Dr Wade dated 25 September 2006 diagnosed Mr Avey with depression.
20. The other medical reports were by Dr Curtis Gray, Psychiatrist (dated 19 February 2007); Dr Roy Bourke, General Practitioner (dated 4 May 2007); Dr Jonathan Hargreaves, Psychiatrist (dated 30 November 2008) and Dr Malcolm Roberts, Psychiatrist (dated 9 September 2009).
21. The report by Dr Gray of 19 February 2007 shows Mr Avey spoke to him about being on HMAS Curlew and said that he was “like a sitting duck”. He referred to being spat on by civilians when he was in uniform in the RAN. He reported his marriage breakdown and, more recently, being affected by the events of September 11, 2001. He told Dr Gray that he was unhappy at work (where he was employed as a Chef) and that he was very tired by the time he completed work each day. Mr Avey was at that time in contact with his eldest son although he had no other contact with his other children. There were no children from his second marriage.
22. Dr Gray considered the symptoms Mr Avey attributed to his RAN service. These include that he had abused alcohol for a number of years until 1997 (but had reduced since that time) and that there was no evidence of abnormal behaviour. He had a mildly depressed mood but, while noting dissatisfaction with his job, there was no evidence of psychological abnormality in terms of perception, cognitive capacity or intellectual capacity. He said Mr Avey’s judgment was “within normal limits”. He noted however that Mr Avey had depressive symptoms which he would have had for 20 to 25 years from the time he was in the Navy. Nevertheless, Dr Gray opined that there was no evidence of psychiatric disorder until he developed depressive symptoms over the previous 10 years or so. He thought those symptoms got worse when he reported being affected by graphic images of the September 11, 2001 attacks. Dr Gray said the depressive symptoms were ongoing but they did not appear to lead to any functional impairment, either at work or in close personal relations. Dr Gray diagnosed that Mr Avey had PTSD in his mid to late teenage years which he said has “attenuated over time” and said that he did not now meet the diagnostic criteria for PTSD.[11]
[11] T-Document 4, Folio 81.
23. In relation to the Major Depressive Disorder which Dr Gray diagnosed, he said the most likely causes were multi-factorial, which he described as “brain neurochemical dysfunction”, “life stressors” and “intrinsic personality function”. Dr Gray said the Major Depressive Disorder was attributable to his “current life circumstances and dissatisfaction with work, his past history of Post-Traumatic Stress Disorder; active service in the Australian Navy, intrinsic coping resources and putative brain neurochemical dysfunction”.[12] He diagnosed the date of onset of the Major Depressive Disorder as being in the late 1990s and said at the time that he saw Mr Avey it was of mild severity, although it would have been “at least moderate in the past”. He described the applicant’s Major Depressive Disorder as being chronic at that time and had been for the previous three years, although he thought it may improve.[13] In relation to PTSD, he diagnosed clinical onset from mid to late teens and was probably very severe in his 20s. Dr Gray said it has settled over time, which is the natural history of that disorder. He noted Mr Avey was fortunate to have had the unwavering support of his wife over these years. He noted no incapacity for work at that time.[14]
[12] T-Document 4, Folio 81.
[13] T-Document 4, Folio 82.
[14] T-Document 4, Folio 83.
24. Dr Roy Bourke provided a letter dated 4 May 2007 and said that he “can confirm that Mr Rick Avey has reduced his working days weekly from five to four dating from 20 April”. He described an increase in the medication Zoloft and said that this was “due to worsening depression. He has made a good improvement on this”.[15]
[15] T-Document 4, Folio 89.
25. The report by Dr Jonathan Hargreaves of 30 November 2008 includes reference to Mr Avey saying he was affected significantly in his RAN service by listening to stories of soldiers who had been in action in South Vietnam. The mental state examination by Dr Hargreaves was consistent with the report of Dr Gray. He said it was likely that Mr Avey had PTSD earlier in life and subsequent to military stressors. He went on to say that those symptoms had settled over the previous 20 years, but that Mr Avey had a separate episode of mental illness about ten years earlier which was exacerbated by the events of September 11, 2001 and other military reminders eg Iraq and Afghanistan. Dr Hargreaves noted, however, that there was some exacerbation of those symptoms because of stress levels at work.
26. Dr Hargreaves’ clinical history shows Mr Avey had also reported his developmental history as a child where his father was very strict, although there was no particular adversity or trauma in his early life and schooling. However, the applicant told Dr Hargreaves that his relationship with his father was not good. He left school in Grade 10 to join the Navy. Dr Hargreaves’ opinion was that his childhood was ”…cut short by joining the navy very young and that was admittedly partly to get away from his father”. The navy culture, which encouraged drinking and “discouraged normal family life”, resulted in Mr Avey developing personality factors which have persisted to recent times. According to Dr Hargreaves, these have not been mitigated, notwithstanding the very major contribution his second wife has made to providing stability and support.[16]
[16] T-Document 4, Folio 141-142.
27. Dr Hargreaves’ assessment was of a provisional diagnosis of Major Depressive Disorder, having acknowledged that Mr Avey had acute depression in 1970 because of the events with his young wife at the time and the fact that he had swallowed some tablets. To explain his assessment, Dr Hargreaves provided a detailed analysis of Mr Avey’s psychiatric state.[17] He opined that the naval experience was stressful for Mr Avey and he would have had PTSD, which led to profound changes to the functionality of his marriage and heavy drinking. He noted that Mr Avey previously had had symptoms of PTSD, particularly re‑experiencing symptoms and avoidance. He accepted that Mr Avey would have been traumatised by the soldier stories and that he was somewhat vulnerable in operational service, particularly during his service on HMAS Curlew. He noted also extra vulnerabilities during his service on HMAS Sydney. The Major Depressive Disorder he was then experiencing was partly because of that earlier vulnerability “which in turn was brought about by military induced PTSD”. Dr Hargreaves noted significant contributory factors from Mr Avey’s early developmental history, personality functions, as well as neurochemical induced depression and the break‑up of his first marriage. In relation to his capacity for work, Mr Avey was emphatic about his dissatisfaction with his employment, particularly the “bureaucratic aspects of the work”, which resulted in anger and irritability with management. He noted Mr Avey had a drop in capacity and thought he probably would have been no longer suitable to work full-time, although Mr Avey admitted to him he could certainly do casual work. Dr Hargreaves said it was important that Mr Avey have regular psychological therapy to help him control memories from the past which he said “tend to keep feeding into the depression”.[18]
[17] See Folio 140 – 141, for example.
[18] T-Document 4, Folio 141 – 142.
28. Dr Malcolm Roberts provided a report of 9 September 2009. His report was extensive, with two sections on “clinical history”. His conclusion was different from that of the other two psychiatrists. Dr Roberts has been Mr Avey’s treating psychiatrist for a period of time. He thought Mr Avey not only had PTSD in the past but that it was still existent. He said it:
… has become more severe with time so that he is now totally and permanently incapacitated for any form of employment and his PTSD has also severely impacted on his social functioning.[19]
[19] T-Document 4, Folio 118.
29. He concluded that Mr Avey:
… needs to claim a TPI pension at the special rate from the Department of Veterans’ Affairs so that he can focus on his psychiatric treatment to try to enable him to have some quality of life … He will remain under long term intensive psychiatric treatment.[20]
[20] T-Document 4, Folio 118.
30. Mr Avey told Dr Roberts he had to retire in July 2007 on the advice of his General Practitioner.[21] Comparatively, he told Dr Gray in March 2007 that he intended to retire towards the end of 2007.[22] His cessation of work has also been described by Dr Hargreaves at the time of his assessment, as not being consistent with Mr Avey’s account of capacity for work. Additionally, Dr Hargreaves stated that Mr Avey ceased work and has since adopted an itinerant lifestyle, but did not go to a doctor to get confirmatory evidence that his depressive condition prevented him from working.[23] It seems he told Dr Hargreaves that his GP told him to quit work. It is apparent that Dr Hargreaves did not regard the certificate from the General Practitioner, Dr Bourke, as providing such confirmatory evidence.[24]
[21] T-Document 4, Folios 117 – 118.
[22] T-Document 4, Folio 80.
[23] T-Document 4, Folio 142.
[24] T-Document 4, Folio 139.
31. By way of observation, I note there is also a record of a letter from Dr Roberts dated 27 April 2010 to the Minister for Veterans’ Affairs, advocating on behalf Mr Avey.[25]
[25] T-Document 4, Folios 159 – 160.
CONSIDERATION
32. In considering whether Mr Avey satisfies the issues in question, I have taken into account all of the relevant law and all of the material submitted to the Tribunal.
Findings of Fact
33. I make the following findings of fact:
1.Mr Avey served in the RAN from 10 July 1963 to 27 January 1971.
2.Mr Avey was on operational service in 1966 on HMAS Curlew when he saw an Indonesian vessel at fairly close range, but no shots were fired or overt threats made.
3.Mr Avey visited South Vietnam waters twice on HMAS Sydney, anchoring in Vung Tau Harbour on two occasions in March/April 1968 and May/June 1968. Both these visits were only overnight visits.
4.Mr Avey’s first marriage broke up in 1973, partly as a result of his RAN service requirements to be away from home periodically.
5.He left the RAN in 1971. Despite having some psychiatric conditions since leaving the RAN, he has worked continuously until 2007. Then he decided to retire because he was not coping well with organisational change and contemporary management practices.
6.He has had no contact with his children since his marriage broke up, except for his eldest son whom he has seen from time to time.
7.He has had an itinerant lifestyle with his wife for many years, working in a town for a few years and then moving on.
Preliminary Matters – Diagnosis and Date of Clinical Onset
34. The analysis of the law and facts must conform to the provisions of ss 120 and 120A of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) as detailed in Repatriation Commissionv Deledio (1998) 83 FCR 82 (“Deledio”).
35. Those requirements assume that there is a factual basis which reveals an “injury” or “disease” of the applicant which is “war-caused”.[26] “Injury” or “disease” are defined in s 5D and whether such an ailment is “war-caused” is answered by reference to ss 6 – 6F of the Act. The detail of these provisions will not be recounted as the parties have not disputed their relevance. While accepting an incident occurred as raised in Mr Avey’s hypothesis and that he had operational service as claimed, the question is by what standard one assesses the injury or disease exists. That standard is the civil standard of proof, that is, on the balance of probabilities or ‘reasonable satisfaction’.[27] This standard of proof applies to the issues of ‘Diagnosis’ and ‘Date of Clinical Onset’.[28]
Diagnosis
[26] Veterans’ Entitlements Act 1986 (Cth) s 9(1).
[27] Repatriation Commission v Cooke (1998) 90 FCR 307; Mines v Repatriation Commission [2004] FCA 1331; (2004) 86 ALD 62 at [48].
[28] Veterans Entitlements Act 1986 (Cth) s 120(4).
36. The issue here is whether the applicant has Major Depressive Disorder.
37. There are three psychiatrists’ reports. Dr Gray and Dr Hargreaves have diagnosed Major Depressive Disorder and both of these doctors were of the view that Mr Avey had PTSD or at least had some symptoms of PTSD in previous times, as a result of his naval service and other factors. Dr Malcolm Roberts agreed that Mr Avey has Major Depressive Disorder but said that Mr Avey also still currently has PTSD.
38. Dr Gray analysed in some detail the contributory factors to Mr Avey’s conditions. He said that Mr Avey developed his current Depressive Disorder in the late 1990s. He also indicated Mr Avey “developed PTSD in mid to late teens” but that attenuated over time. Dr Hargreaves said it is likely “he had PTSD earlier on in life subsequent to military stressors, but those symptoms had settled over the past 20 years”. He clearly acknowledged a diagnosis of Depressive Disorder, which he said had onset “about ten years ago” and which was exacerbated by September 11, 2001 attacks.
39. Only Dr Rogers made a current diagnosis of PTSD and that was made a couple of years after the other two doctors’ diagnoses. Dr Rogers stated that Mr Avey gave up work because of his mental illness. The account given to Dr Hargreaves and Dr Gray is different to that given to Dr Rogers in some respects. Dr Gray said there was no evidence of incapacity for work. Dr Hargreaves was told that Mr Avey could work (at least part-time) and could find work easily but would not cope with the managerial responsibilities as in the past. The opinions of Dr Gray and Dr Hargreaves are preferred. Not only are they supported by detailed reasoning, the opinion of Dr Rogers seems more emotionally based than the objective reports of the other two experts. Dr Rogers seems also to have become defensive of the opinions of the other doctors and has adopted the role of an advocate in writing to the Minister for Veterans’ Affairs on behalf of Mr Avey. The role and requirements of expert evidence is discussed subsequently but must reflect a professional objective opinion and not be partial, even where the opinion is for a client. I find Dr Rogers report is not completely impartial.
40. I find the diagnosis of Major Depressive Disorder is clearly established to the standard of reasonable satisfaction.
Date of Clinical Onset
41. Having determined a diagnosis of Major Depressive Disorder, Dr Gray estimated the date of clinical onset as being in the late 1990s. Dr Hargreaves estimated onset about ten years prior to seeing Mr Avey, which is approximately 1997. To give Mr Avey the benefit of these opinions, the most generous interpretation would be clinical onset in 1997. I make a finding of fact that clinical onset occurred in 1997.
Legal Requirements
42. Section 9 of the Act provides an injury will be war-caused for the purposes of the Act if it “occurred while rendering operational service or arose out of or was attributable to war service”.[29] If so, the Commonwealth is liable to pay pension to the veteran.[30] To be successful, Mr Avey must establish a reasonable hypothesis and if that is established, he must succeed unless the Tribunal is satisfied that there is no sufficient ground for so finding[31] ie must be some scientific knowledge which is contrary to the applicant’s story as described in his reasonable hypothesis or the hypothesis must be regarded by the Tribunal as fanciful, tenuous etc.[32] Any such contrary scientific knowledge or evidence must be established beyond reasonable doubt.
[29] Veterans’ Entitlements Act 1986 (Cth) s 9.
[30] Veterans’ Entitlements Act 1986 (Cth) s 13.
[31] Veterans’ Entitlements Act 1986 (Cth) s 120(1).
[32] Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
43. The standard of proof is that of a reasonable hypothesis as specified in s 120(3) of the Act. Where the Repatriation Medical Authority (RMA) has determined a Statement of Principles (SoP) under s 196B of the Act, the requirement of the SoP particularises essential proof to meet the minimum legal standard. The process to be followed to amplify the assessment of that legal standard is that approved by the Full Court of the Federal Court in Deledio[33]. There are four steps to be followed in assessing the applicant’s claim.
[33] (1998) 83 FCR 82.
44. Step 1 of the Deledio process requires that there must be a hypothesis made out by the applicant.[34] Here, Mr Avey, has put forward a hypothesis of a scenario of a tense or stressful incident on the HMAS Curlew (“the first incident”); and of a psychologically stressful period for the other two incidents claimed while on the HMAS Sydney (“the second and third incidents”). He had had about 3 or 5 years RAN service respectively at the time of these three incidents. Between the first incident and the second and third incidents he married and had two children. His wife was very young and unfaithful. He had anxiety and psychological distress which occurred after the incidents he described. The material also shows he had some vulnerability to psychological or psychiatric conditions at that time. A hypothesis is clearly raised. Step 1 is therefore satisfied in respect of the three incidents raised.
[34] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97.
45. Step 2 requires a SoP to have been issued by the RMA.[35] SoP 27 of 2008 has been issued for Depressive Disorder. SoP 40 of 2010 has also been issued as an amendment to SoP 27 of 2008.[36] Step 2 is therefore satisfied in respect of these incidents.
[35] Ibid.
[36] The amendment to SoP 27 of 2008 in SoP 40 of 2010 is not relevant in this case.
46. Step 3 requires assessment of whether the hypothesis identified in Step 1 is a ‘reasonable’ hypothesis.[37] To be reasonable, it must satisfy at least one of the factors specified in paragraph 6 of SoP 27 of 2008. Mr Avey’s case is that he satisfied factor 6(a)(ii), that is, that he has experienced a “category 1A stressor, within the five years before the clinical onset of depressive disorder”. A “category 1A stressor” is relevantly defined in clause 9 of the SoP as meaning:
… one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) … ; or
(c) being threatened with a weapon …
[37] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97.
47. The definition of “experiencing a life threatening event” in sub paragraph (a) has been held to mean “the effect of the event, not the event itself ... it is a mixed objective and subjective test … it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death”.[38] It must be judged to the degree that the veteran had knowledge of the threat. Information unknown to the veteran at the time cannot be taken into account. Also, his conduct after the event is irrelevant. That is, quite apart from any “irrational or baseless” reaction which would not indicate a reasonable hypothesis, “the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did.“[39]
[38] Border v Repatriation Commission (No 2) (2010) FCA 1430 at [67].
[39] Ibid.
48. The requirement in subparagraph (c) must be assessed using an objective test only. It will be reasonable if judged to be so from the point of view of a reasonable person.
The First Incident
49. The first incident would be a frightening event given the veteran’s age and level of training with a Bren gun at that time. He was trained as a cook, not as a gunner. The veteran’s story must be assessed using a subjective – objective test. Using the subjective test, it is clear he was then a very anxious young man. It was a frightening event to him. At the time it is conceivable many people including Mr Avey, when confronted with the situation on HMAS Curlew, would have had a mind and heart racing and cognitively, would be likely to have thoughts of possible dire consequences of injury or death if there was exchange of fire. It must be recognised that such a hypothesis may be capable of giving rise to a perception of a threat of death in the applicant, or at least thought of such a possibility. Therefore, the subjective element of the test is satisfied. Using an objective test, it is a plausible and reasonable story for a person of that age and level of training to be frightened by such an incident. However, the first incident must be more than frightening or merely ‘wild’ thoughts of an anxious young man. The “standoff” described for the purposes of subparagraph 9(a) would undoubtedly be anxiety producing in most people and most certainly could have that effect on a young man in Mr Avey’s position at the age. However, it could not objectively be described as “life threatening” where the Indonesian weaponry was not manned, or was not pointed at or fired at HMAS Curlew. Also, when the Indonesian vessel took off at high speed and the Captain of HMAS Curlew was in pursuit, this does not suggest the Captain of HMAS Curlew was concerned about a threat of being fired upon. Considering the whole of the material, the effect of the event in this hypothesis is that the material does not point to the incident being “a life threatening event” in accordance with sub-paragraph 9(a).
50. Using the definition of a Category 1A stressor in paragraph 9(c), that is, “being threatened with a weapon”, the question is whether, from Mr Avey’s version of events referring to the gun on board, the Komar class vessel was a threat. Mr Avey gave evidence that his hypothesis is based on what he “guessed” would be the case. He had little factual information at that time but he surmised the weapon on the Indonesian vessel could rotate and blow HMAS Curlew out of the water. Applying an objective test to the factor of his age at that time, there would have been much uncertainty about the fire power of the Indonesian vessel, which Mr Avey had virtually no knowledge of. Apart from what he observed, he saw the Indonesian vessel for about 20 minutes.
51. The assessment is not concerned with proof of facts at this stage.[40] It is merely an assessment of the hypothesis based on the whole of the material. A hypothesis cannot be reasonable where it is contrary to known or proved scientific facts or where it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”.[41] In all the circumstances of the hypothesis, there was no indicia of threat; no indication of anyone manning the gun on the Indonesian vessel, no aggressive gesture (such as pointing the gun at HMAS Curlew); and no shot fired. The Indonesian vessel appears to have been more in retreat than on the offensive as it took off at high speed with HMAS Curlew in pursuit. The scenario would have been anxiety producing at the time but the material does not point to the applicant being threatened with a weapon. The hypothesis for the first incident does not satisfy paragraph 9(c) as it is too tenuous and is therefore not reasonable.
[40] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97.
[41] East v Repatriation Commission (1987) 16 FCR 517 at 532, cited in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
52. In addition, the incident must also have occurred within five years of the clinical onset of Depressive Disorder. The incident occurred in 1966. The clinical onset of Major Depressive Disorder was not until 1997, approximately 30 years later. Mr Avey cannot be said to satisfy the SoP. The first incident therefore fails at Step 3 of the Deledio process.
Second and Third Incidents
53. The second and third incidents, being in Vung Tau Harbour for approximately 24 hours on two occasions, are said to have created fear in Mr Avey because of the psychological stress of potential enemy divers. The description of the hypothesis of Incidents 2 and 3 is scant in detail. It is interwoven in its effects with the effects of Incident 1 on the applicant’s Major Depressive Disorder.
54. The hypothesis is that he experienced “a life threatening event”. There were scare charges and the defensive tactics used by the RAN while in Vung Tau Harbour. Although HMAS Sydney did this trip frequently (and twice within three months while Mr Avey was posted to the ship), Mr Avey did not refer to having been briefed or spoken to by others about the potential risks of enemy divers as one might expect. This was so even though he was then 20 years of age and had been in the permanent RAN for 5 years. Mr Avey particularises this hypothesis to some degree in his statement of 29 October 2010 and describes the discharge of scare charges and its effect on his sleep and anxious state. He was, by that stage, a person with extra vulnerabilities psychologically and, was in constant fear while there. This made him “stressed and angry”.
55. Using a subjective test, it is possible that in his then state of mental health, it could have led him to the perception of his life possibly being in danger at times while in Vung Tau Harbour. I would accept that he does satisfy that element of the test. However, in using the objective test, a reasonable person would view the threat in terms of the size and sophistication of HMAS Sydney, which had been undertaking the trip to Vietnam regularly, and the likelihood of it being threatened by enemy divers. The hypothesis of the ship together with its many experienced staff, Mr Avey’s length of service (five years) and the fact the ship only stayed in the harbour for approximately one or two overnight stops on each visit. The scare charges and the activity around the ship, which could sometimes be noisy or startling, also served to reduce the threat against HMAS Sydney. The large number of more senior ranks or experienced sailors on board HMAS Sydney who had been to Vietnam previously were also available in support the ship’s company. Objectively therefore, the hypothesis does not equate to a ‘life threatening event’ for the purposes of factor 9(a).
56. For the purposes of factor 9(c), an applicant must be threatened with a weapon. Even if enemy divers with explosives can be regarded as meeting the definition in Factor 9 (c), objectively, a reasonable person taking the part of the applicant in his story does seem too tenuous. Overall, neither incident can be said to have involved a “life threatening event” or “being threatened with a weapon”. In any event, the requirement in the SoP for Major Depressive Disorder to have its onset within five years of the incident is also not satisfied. Incidents 2 and 3 therefore fail at Step 3.
57. Step 3 is not satisfied. Mr Avey therefore cannot succeed.
58. Even if I had decided there was a reasonable hypothesis in Step 3, Step 4 could not be satisfied in any event. This step requires, for the first time, an assessment of the evidence separately from the hypothesis raised. Most of the relevant evidence came from the expert opinion of psychiatrists. That evidence included Mr Avey’s account, and Dr Hargreaves also took into account the views of Mrs Lea Avey, who has known Mr Avey virtually since two months after the marriage to his first wife finally broke down. She described Mr Avey’s irritability, unstable moods and behaviour from 1975 up to the time he was seen by psychiatrists. She has also provided very substantial assistance in the preparation of the material in statements by her husband.[42]
[42] See T-Document 4, Folios 161 – 188; 220 – 223.
59. The test for Step 4 is set out in s 120(1) of the Act. It proceeds on the basis of an applicant having a ‘reasonable hypothesis’. The question in Step 4 is “whether there is a basis for determining there is no sufficient ground for upholding the reasonable hypothesis”.[43] That is:
(1)Is there any factual basis which supports the contention that the hypothesis is not true, and which is proved beyond reasonable doubt; or
(2)Is there a further fact (or facts) which is inconsistent with the hypothesis which is proved beyond reasonable doubt?[44]
[43] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97.
[44] Bushell v Repatriation Commission (1992) 175 CLR 408 at 427 per Brennan J, confirmed in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570 – 572.
60. Some of the facts for the first incident are not completely consistent. The facts involve an assumption that the Captains of the two craft must have had radio communication. That was followed by the Indonesian vessel taking off at high speed. HMAS Curlew was in pursuit and it appears the Captain was not anticipating any unfriendly fire from the Indonesian vessel out of proportion to the armour of HMAS Curlew.
61. The assessment of the hypothesis cannot take account of information he did not know at the time[45]. But Mr Avey said some of the information which is the basis of his hypothesis was “guessed”. An addendum to Mr Avey’s statement to the VRB shows extracts from the Reports of Proceedings for HMAS Curlew in 1966. The copy is not very clear in parts but Mr Avey’s case was that the report is a summary only. Mr Avey’s case was also that the description of Extract 2 is the incident which was the cause of Mr Avey’s present condition.[46] That extract seems to refer to four Indonesian vessels and that they remained in Indonesian waters. It also refers to action stations and in relation to the vessel said to be identified in Mr Avey’s claim, the report states “... on the approach of Curlew, it turned south into Indonesian waters ... Patrolling continued...”.[47] Despite that report being in summary form, there is no indication there of what would ordinarily be regarded as a threat.
[45] Border v Repatriation Commission (No 2) (2010) FCA 1430.
[46] T-Document 4, Folio 220.
[47] T-Document 4, Folio 220.
62. In relation to the psychiatric evidence, I have indicated that the expert opinions of Dr Gray and Dr Hargreaves are accepted and preferred to the opinion of Dr Roberts. To be accepted as an expert whose evidence will be admissible, it must be demonstrated that there is a field of “specialised knowledge”. It must also be evident that the person whose opinion is sought to be admitted as expert evidence must have had specialised “training, study or experience,” and the opinion must be “wholly or substantially based on” the witness’s expert knowledge.[48]
[48] Evidence Act 1995 (Cth) s 79.
63. The expert must be able to explain the reasoning process used so that the Court or Tribunal can make the ultimate decision.[49] This is an important issue and “care must be taken” that experts do not usurp the role of making the ultimate decision in areas in dispute or that their evidence is not outside their field of expertise.[50]
[49] Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146 at [23].
[50] Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 504 at [622].
64. If all of the matters of law are not satisfied in relation to the expert’s evidence, it may not be possible to be satisfied that the opinion is wholly or substantially based on the professional person’s expert knowledge. In those circumstances, the expert’s report, to the extent that it is not based wholly or substantially on the field of specialised knowledge, is either inadmissible or of diminished weight.[51]
[51] Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [59].
65. All three psychiatrists in this case satisfy the legal requirement to be trained in a field of specialised training and it is accepted that all three are competent, and therefore should be recognised as experts. Dr Gray and Dr Hargreaves’ detailed and analytical reports explain the reasoning for their opinions and satisfy s 79 of the Evidence Act 1995 (Cth). As I am not satisfied that Dr Roberts’ opinions are wholly objective, I am not certain that his opinions are wholly and substantially based on his training, study or experience. His opinions must be regarded as being of diminished weight. As a matter of law, therefore, I place greater weight on the medical opinions of Dr Gray and Dr Hargreaves.
66. Dr Hargreaves noted the significance of the relationship breakdown in the 1970s and that the loss of Mr Avey’s children resulted in “a lifelong change in his personality with anger, distrust and a sense of injustice”.[52] Dr Gray made a similar assessment. Dr Hargreaves noted that Mr Avey had changed from being a happy person to an angry unhappy man during his naval service.
[52] T-Document 4, Folio 141.
67. Dr Hargreaves assessed the accounts given by Mr Avey and attributed PTSD early in his naval career to naval experiences, including HMAS Curlew and extra vulnerability on HMAS Sydney. In particular, he said Mr Avey was adversely affected by traumatic stories given by soldiers of their experiences in Vietnam. Dr Hargreaves assessed the early PTSD as having settled, but was exacerbated in recent years by the September 11, 2001 attacks graphically reported in the media, other military reminders such as Iraq and Afghanistan, together with increased stress at work from changing and inconsistent leadership patterns. This led to frustrations, anger and irritability with the bureaucratic dimensions of his work life.
68. The factors attributable to the development of his clinical conditions earlier in life, which are regarded by the expert evidence as having settled, included the relationship with his father (which was a factor in his joining the Navy), loss of childhood by joining the Navy at a young age, naval service life which encouraged drinking and the insensitivity of naval life to the needs of a young man like Mr Avey who had other important life demands from his family.
69. The psychiatric evidence further attributes his condition to other social and non-social factors. The contribution of his first wife’s promiscuity and apparent incompetence as a mother was independent of the applicant’s vulnerabilities but those factors also significantly affected him. Dr Hargreaves says it is difficult to be certain whether Mr Avey or his first wife made a greater contribution to the break-up of his first marriage. Other factors such as neurochemical factors may also be influential in the present condition of Depressive Disorder.[53] Dr Gray, in particular, used similar analyses of the personal life events and also regarded brain neurochemical dysfunction, life stressors and intrinsic personally function as being important contributors.[54]
[53] T-Document 4, Folio 142.
[54] T-Document 4, Folio 81.
70. With the consistency of analyses by both Dr Hargreaves and Dr Gray, the weight of evidence points to factors inconsistent with Mr Avey’s hypothesis. The extent of these contributors and the degree of their impact, in my view, points to other non-war caused factors being also significant in Mr Avey’s present condition.
CONCLUSION
71. I find that even if I could have been satisfied that there was a reasonable hypothesis in any of the three incidents, they would have been disproved beyond reasonable doubt.[55] There is ample evidence Mr Avey had PTSD earlier in life but that has subsided. He has had a separate mood disorder (Major Depressive Disorder) since the late 1990s, but its multi-factorial nature and the date of clinical onset mitigates against a link to Mr Avey’s previous RAN service. None of the claims satisfy SoP 27 of 2008. The assessment of pension for attribution of war service to his mood disorder is therefore not necessary.
[55] Byrnesv Repatriation Commission (1993) 177 CLR at 570 – 573.
72. The decision under review must be affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K S Levy, RFD
Signed: .........................[Sgd]....................................................
AssociateDate/s of Hearing 7 January 2011
Date of Decision 8 March 2011
The Applicant was represented by Helena Smith, advocate
The Respondent was represented by Bruce Williams, departmental advocate
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