Balabouhin and Repatriation Commission
[2004] AATA 86
•3 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 86
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/353, Q2001/1046
VETERANS' APPEALS DIVISION )
Re JOHN BALABOUHIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date3 February 2004
PlaceBrisbane
Decision The Tribunal:
(a) in respect of application Q2001/353, sets aside the decision under review and in substitution therefor determines that the applicant’s post traumatic stress disorder and alcohol abuse/dependence are war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986, with effect from 9 November 1999;
(b) in respect of application Q2001/1046, decides that the applicant is not entitled to pension at the special rate and remits the matter to the respondent for assessment of the percentage of general rate pension payable to the applicant.
....................(Sgd)......................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – PTSD – whether applicant suffered a severe stressor – meaning of “severe stressor” – meaning of “actual threat” – reasonable hypothesis raised – hypothesis not disproved – decision set aside
VETERANS’ AFFAIRS – benefits and entitlements – pension – rate of pension – whether applicant entitled to pension at the special rate – alone test – applicant did not cease work solely due to his war caused conditions – ameliorating provisions – applicant not making genuine attempts to seek remunerative work – rate of pension payable at general rate to be assessed by respondent
Veterans’ Entitlements Act 1986, ss 9, 24(1)(c), 24(2)(b), 120(1), 120(3)
Forbes v Repatriation Commission [2000] FCA 328
Re Rice and Repatriation Commission [2003] AATA 143
East v Repatriation Commission (1987) 74 ALR 518
Repatriation v Bey (1997) 47 ALD 481
Deledio v Repatriation Commission (1997) 47 ALD 261
Stoddart v Repatriation Commission (2003) 197 ALR 283Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Stoddart [2003] FCAFC 300
REASONS FOR DECISION
3 February 2004 Mr O Rinaudo, Member Decision Under Review
1. There are two decisions under review in this application:
(a)a decision made by the Department of Veterans’ Affairs on 9 August 2000 to increase the disability pension to 70% of the General Rate with effect from 9 February 2000. This decision was affirmed by the Veterans’ Review Board (the VRB) on 10 August 2001; and
(b)a decision of the Department of Veterans’ Affairs dated 8 May 2000 to reject claim for post traumatic stress disorder, alcohol dependence or alcohol abuse and depressive disorder as being war-caused. This decision was affirmed by the VRB on 20 March 2001.
History
2. The applicant was born on 20 May 1937. He served in the Royal Australian Navy from 25 May 1956 until 24 August 1965. The applicant rendered eligible service (which is also operational service) between 17 March and 3 April 1958, 23 April and 13 August 1958 and 18 March to 28 April 1959. This was aboard HMAS Melbourne with the Far Eastern Strategic Reserve. The applicant also rendered operational service from 17 August to 25 September 1964, 12 October to 2 November 1964 and 19 November to 10 December 1964 aboard HMAS Vendetta during the Indonesian confrontation.
3. The applicant’s accepted war-caused disabilities are:
§Bilateral sensori-neural hearing loss with tinnitus
§Tinea pedis
§Pleural plaques
4. The veteran’s non-accepted disabilities are:
§Post traumatic stress disorder
§Alcohol dependence or alcohol abuse
§Depressive Disorder
§Haemorrhoids
§Dermatitis - Atopic
Issues
5. The issues in this application are:
(a)in respect of file Q2001/353 – whether post traumatic stress disorder, depressive disorder and alcohol dependence or alcohol abuse is war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”); and
(b)in respect of file Q2001/1046 – whether pension payable pursuant to the provisions of the Act is correctly assessed at 70% of the General Rate of pension payable under the Act or whether pension should be paid at the Special Rate.
Evidence
6. The applicant attended the hearing and gave evidence. Evidence was also obtained from Mr Edward Walter Christensen, Dr Peter Mulholland, Psychiatrist and Commander PM Mulcare RAN Rtd from Writeway Research Services. Documents admitted into evidence were as follows:
Exhibit 1 “T” Documents – Q2001/353
Exhibit 2 “T” Documents – Q2001/1046
Exhibit 3 Statement of John Balabouhin dated 11 January 2002
Exhibit 4 Statement of John Balabouhin dated 26 February 2002
Exhibit 5 Statement of Wal Christensen dated 19 September 2000
Exhibit 6Letter to Department of Veterans’ Affairs from applicant dated 11 August 1998
Exhibit 7Report of Dr Peter Mulholland dated 16 October 2001
Exhibit 8Writeway Research Report dated 1 November 2002 with Attachment 4 only
Exhibit 9Letter to Department of Veterans’ Affairs from Jill Haidon, Department of Defence dated 22 August 2001
Exhibit 10Relevant Ships’ Movements dated 25 October 1971
7. The applicant stated that the most distressing incident which occurred during his naval service was the incident involving the human head. The applicant described the incident as follows:
“7.I was on duty as a petty officer and was assisting a group of twenty or so British commandos in coming aboard. We were trying to do this very quickly as contrary to our usual procedure, we were bringing them aboard during daylight.
8.This was not the first time that we had escorted British commandos aboard our vessel, and in fact, it was a fairly frequent occurrence.
9.I was assisting in bringing the commando’s bags on board. I was handed one particular bag, then a large Scottish commando who was the owner of the bag tried to take it off me almost straight away. However, there was a very pungent smell coming from the bag so I opened it to see what was inside it. Inside the bag was a severed head.
10.Petty Officer Wally Christensen let out a gasp of laughter which was definitely not humour, but was rather horror. I remember him making a statement to the effect that the bloke must have used a shovel to decapitate the head as it was evident that it had not been removed cleanly from the body.
11.The commando stated that it was his to take home as a present for his son. I objected to the bag coming on board, I informed the gentleman of this fact, and therefore I threw the bag over the side of the ship. The commando acted angrily to this and had to be restrained by the other commandos. I believe that my life was in danger at this time and if the commando had not been restrained, I would have been seriously injured or killed. I was in fear of my life at this time.
12.The incident occurred just after we had escorted the Bulwark to Borneo. We had picked-up these commandos and were taking them back to Singapore. The commandos left the ship at Singapore and would have been aboard for approximately three to four days.”
8. The applicant described a further incident which caused him fear. He said that on one occasion the ship had been cruising on one boiler for economy reasons. There were 340 personnel on board. The applicant received a call from the bridge saying that he was required to get the second boiler going as soon as possible. It usually took 1½ hours to get the boiler fully functional. However, on this occasion, with the assistance of Petty Officer Christensen, they managed to get to the boiler running in under 50 minutes. The applicant said that this was a very dangerous enterprise as the boiler might blow up.
9. The applicant said that he was later advised that the reason he had to get the boiler up and running as quickly as possible was because there was a Russian submarine in the area. He said that he was very apprehensive that he and the ship were in danger as he thought they could come under attack at any time from the submarine. He knew that relations between Australia and Russia were not good at that time as it was during the Cold War. However, he said that the captain of his ship was able to negotiate with the Russian submarine by radio.
10. The applicant also stated that he had experienced a further stressful incident when the ship on which he was serving, HMAS Vendetta, had escorted HMAS Bulwark from Singapore to Borneo. He said that only six months earlier the HMAS Melbourne had collided with HMAS Voyager. He said that they were required to escort the HMAS Bulwark under almost identical conditions and this was particularly frightening as the ship belonged to the British Navy and it was an unknown ship with an unknown captain. The applicant noted that the voyage was completed without incident. However, he said he was on edge the whole time and afraid of an incident similar to the HMAS Voyager occurring.
11. Mr Balabouhin made the following comments in his statement about why he had not highlighted the head incident during his interview with Dr Hargreaves:
“3.…..This is an incident which I have found to be extremely upsetting. I get very teary when I have to speak about this issue and often get the shakes. It is also not uncommon for me to go on a drinking binge after having spoken, even in broad terms, about the incident. Therefore, I really have not spoken about the incident to anyone as I find it just too upsetting to talk about. Due to the very profound effect that this incident has on me, I never really speak about it to anyone, and this includes Dr Hargreaves.
4.However, nightmares and visions of this incident have continued ever since the event. I continue to re-experience opening the bag and seeing the head inside. However, the head is not always the same head which I looked upon on that day. At times, the faces which I see within the bag are members of my family and in particular, my children.
5.As the nightmares and visions of this incident occur more frequently after speaking of the incident, I basically have tried not to talk about the incident to anyone and that includes psychiatrists. I really have tried to put it out of my mind as much as I can, however, have been unsuccessful in doing so.”
12. The applicant said (as outlined in his statement dated 26 February 2002) that:
“2.After I took my discharge from the Royal Australian Navy, I secured a job with the airport as a firefighter and there I stayed, fully employed, from 1965 until 1997.
3.Because of my Post Traumatic Stress Disorder, I found it impossible to concentrate on my job and, as a result, the least bit of stress seemed to throw me into a dither and I had difficulty in coping with our day to day work.
4.Because of the difficulties that I was having with the job I wrote to Bob Butcher, who was the Officer in Charge of fire services in all of Australia, about my problem and with the intent of securing a redundancy from them.
5.I was successful in securing the redundancy from my job.
6.There is no doubt whatsoever that if I had not suffered from the Post Traumatic Stress Disorder, I would have still been working at that job today.
7.I was so bad that on the night I had my farewell from the fire service, I had a nervous breakdown.
8.I recognised the problems that I had because I had been to see Dr Raymond James in 1988 as I feared that my psychological condition may cause me to be violent, especially towards my family.
9.It became clear to me that at the time of my ceasing work, I had to do something about the problems I was having.
10.At that time I sought treatment, and received it, from Dr Jonathan Hargreaves.
11.Dr Hargreaves diagnosed the existence of Post Traumatic Stress Disorder and I was referred to Toowong Private Hospital where I was placed in the care of Dr Crompton for my condition.
12.Therefore, I believe that I was forced to cease work because of my war-related disabilities alone.”
13. The applicant last worked four years ago as an airport firefighter. The applicant said that in 1988 he saw Dr James because he was fearing for the safety of his family. He said he was suffering anxiety. The applicant said that he told Dr James about the head incident. In cross-examination the applicant noted that he applied for a redundancy from the airport firefighting job. He noted that although no redundancy was available he had applied for one. The applicant also noted that he had applied for a service pension because he could not work more than eight hours per week. In response to a question about his leaving work, the applicant noted, in respect of Exhibit 6, that:
“There were times when I was extremely breathless after an exercise or a drill, an exercise is where one participated in a hot fire, simulating an event which could occur during your tour of duty, a scenario was played out during which period simulations were put into place.”
14. He noted that these caused shortness of breath and that he had flashbacks. It was noted at folio 65 of Exhibit 1 that Dr James had reported on 29 June 1988 but had not made any reference to the head incident.
15. The applicant noted that in 1960 he had been aboard HMAS Melbourne when a sailor had lost his leg. He said that he did not feel strange about this. He also attended two heart attack victims when that occurred without concern. He noted that during his civil employment he had been in an incident involving an Ansett flight which had attempted to be hijacked. He was also involved in a stand-off with a person who had a petrol tanker. On this occasion children were involved.
16. In respect of Dr Mulholland’s report (Exhibit 7), the applicant confirmed the matters set out in paragraphs 18 and 19 on page 11 that he belonged to the RSL but did not march in the Anzac Day Parade because of tinea. He did however attend a dawn service at Greenslopes Hospital and met up with friends there. He further confirmed that he had been a member of the Masonic Lodge for many years, was not involved in any specific sporting activities (again because of tinea), had tried to get involved in a lapidary club but this did not work and he did some gardening because this kept his feet in the sun which helped them to dry out. He also confirmed that he was suffering from emphysema and angina.
17. The applicant noted that, in Dr Mulholland’s report, it was reported that he had commenced excessive intake of alcohol at least from 1967. The applicant agreed with this noting that it was at least from that date. In respect of paragraph 21.4 of Dr Mulholland’s report the applicant agreed that his drinking has been out of control for the past five years, that is, from 1995 onwards, but did not agree that he had not been a heavy drinker over the years. He did not agree that there had been any improvement and that he was drinking less. These were comments made by his wife, Mrs Jan Balabouhin.
18. The applicant confirmed that some things “set him off”.. He stated that he does not watch war movies. He stated he has flash backs which occur frequently. He confirmed that he had thrown the bag containing the head overboard and that an altercation with the Scottish Commando had occurred. He could not say why the supervisor did not report the incident. Mr Balabouhin noted that he had chest pains on one occasion at work.
Mr Edward Walter Christensen
19. Mr Edward Walter (Wally) Christensen gave evidence. Mr Christensen confirmed the head incident had occurred in broadly the same terms as the applicant. He said he had broken out into “fits of giggles”, which had been a nervous reaction.
20. In cross-examination he confirmed that the head was tipped out of the bag overboard. He said that HMAS Vendetta had been an unhappy ship. He said that on one occasion the ship was on patrol off Borneo in closer to shore than usual. He said they had to fire-up the boiler as quickly as possible in case of enemy fire. He said that the captain would have the ship on economical steaming which meant only one boiler. He said he did not recall if an officer was in charge of the boarding party or not.
Dr Hargreaves, Psychiatrist
21. Dr Hargreaves gave evidence and confirmed his reports dated 4 November 1999 (Folio 6 of Exhibit 2), 22 November 1999 (Folio 20-22 of Exhibit 2) and 17 March 2000 (Folio 45-50 of Exhibit 1). In his report, Dr Hargreaves noted the following stressors:
§witnessing a sailor losing his leg when a cable snapped and hit the sailor;
§when they were at actions stations in Borneo;
§when the applicant rescued a sailor who had become overcome by fumes and had fallen 15 metres injuring his head and made unconscious;
§concerns about the Russian submarine;
§concerns about a possible HMAS Voyager incident when escorting HMAS Bulwark to Borneo; and
§the head incident.
22. Dr Hargreaves noted that the applicant had not advised him of the head incident in March 2000 when he had reported. He said he did not know about the head incident at the time. Dr Hargreaves confirmed his conclusion that the applicant’s decision to leave work was 25% attributable to post traumatic stress disorder and 75% attributable to respiratory problems. However, he noted that:
“interaction of the two illnesses has probably made each worse, with the increased anxiety from the PTSD leading to hyperventilation, air hunger and further reduction of exercise tolerance.”
23. Dr Hargreaves confirmed that he believed that the applicant was an honest man. He said that he had prior experience of veterans not telling him things until much later. Dr Hargreaves noted that he did not feel that this was because the applicant did not think it was important. Dr Hargreaves noted that it was a part of avoidance because the veterans did not want to bring these things up. He said he did not feel deceived.
Dr Mulholland, Psychiatrist
24. Dr Mulholland gave evidence and confirmed his report dated 16 October 2001, which is Exhibit 7. Dr Mulholland referred to the applicant’s very high degrees of entitlement and said that the applicant’s strength of belief is strong. He noted at paragraph 23.4:
“It is noted that this veteran has very high degrees of entitlement and this tends to confuse the clinical picture. In assessing him it is necessary to try to see past the entitlement and that is difficult. As part of his entitlement this veteran may be exaggerating his psychological symptomatology and disability and whether that exaggeration is occurring at a conscious, pre-conscious or unconscious level it is impossible to say.”
25. Dr Mulholland also confirmed the comments made in paragraph 23.3 of his report when he noted:
“Note that from his description the subjective elements of Criteria A for a diagnosis of PTSD seemed to be satisfied and I see it as being a matter for the Tribunal to decide whether the objective aspects of Criteria A are satisfied or not. In other words his perception was that there was a major threat and whether there actually was or not is not for me to say. The so-called human head incident is probably something that did and to a certain extent does disturb his equanimity but is not regarded as being central.”
26. Dr Mulholland noted in evidence that he thought that the most important thing for the applicant seemed to be when he was in the boiler room with one boiler going. He said the applicant had a fear of the ship being torpedoed.
27. Dr Mulholland noted that a blood test had shown that the applicant’s alcohol was not elevated. He drew the inference that the applicant’s alcohol intake is not excessive at present. Dr Mulholland confirmed his opinion that the applicant is not capable of working due to his physical, general and psychological conditions.
Commodore Mulcare
28. Commodore Mulcare gave evidence and confirmed that he had been in the Navy from 1954 until 1991 when he retired as a Commodore. He said that he was an independent researcher doing research through Writeway Research Service.
29. He stated that the ship’s log of HMAS Vendetta could not be found. He did, however, find records of proceedings. Commodore Mulcare noted the comments in paragraph 3 of his report which said:
“The veteran said this happened just after VENDETTA escorted HMS BULWARK to Borneo. This means the commandos were onboard VENDETTA from 22nd or 23rd of August until 25 August 1964. This was the only time VENDETTA sailed from Borneo to Singapore in 1964. There is no mention, in VENDETTA’s Reports of Proceedings (ROP), of commandos being given passage at this, or any other time, during the ship’s service in the Far East in 1964, although I would expect it to have been mentioned. I cannot think of a security reason for not mentioning that 20 or so commandos were given passage from Borneo to Singapore – there would have been nothing remarkable about that, although accommodating this number of additional personnel onboard would have been a major evolution.”
30. Commodore Mulcare referred to Attachment 1 of his report which set out HMAS Vendetta’s outline program 1964. Attachment 5 was the Report of Proceedings for the month the event would have taken place. He said there is no reason for not reporting it in the document. He said there are no records of commandos coming on board during the month of August 1964.
31. Commodore Mulcare referred to Attachment 2 and said that the commandos would have come on board the ship at the point marked on Attachment 2. This is about half-way along the ship and where the hull reduces in height. He noted that the Executive Officer would have been down there “overlooking the task like a hawk”. Commodore Mulcare noted that if the Executive Officer were not there, then another officer would have been present. He said that an officer would certainly have known about the incident.
32. Commodore Mulcare said that he spoke to Admiral Horton who was the Navigator and Rear Admiral Woolrych, who was the Executive Officer on HMAS Vendetta at the time. He confirmed that he did not speak to the Officer-of-the-Watch. He also confirmed he did not know what the words “special overseas service” meant in this circumstance.
Rear Admiral Woolrych
33. Rear Admiral Woolrych gave evidence and confirmed the statement made by him on 22 October 2002. He said that he was transferred from HMAS Vendetta in September 1964. He said that he was responsible for anyone coming on board as the Executive Officer. He said that it was highly improbable that the event had ever happened. He said that if the incident had occurred during daylight hours it was almost certain that he would have been present. He reported that he could not remember an incident like the one described. He noted that he could not imagine that the event had happened. He said he could recall an incident like the one described by the applicant. He said there were 335 bunks on HMAS Vendetta and it was most unusual for them not to be all full. His letter states:
“As the Executive Officer of HMAS Vendetta at the time of the allegations by Mr Balabouhin surrounding the embarkation of British Commandos off Borneo in August 1964, I would almost certainly have been present at the scene. I have absolutely no recollection of the alleged events and in view of the attendant dramas of the severed head and the threat to the ship’s company I regard it as unthinkable that I would not recall it even after all these years. Also, I feel sure that such an unsavoury incident would have been the subject of some official report from the ship to appropriate authorities. To my knowledge no such report was ever made. Accordingly it is my very firm view that the alleged incident never occurred as claimed.
I turn to Mr Balabouhin’s claim that the embarkation of British Commandoes by Vendetta ‘was a fairly frequent occurrence’. Ship’s company accommodation in a Daring Class ship was extremely tight and the carriage of numbers of additional personnel for overnight passage would involve a major upheaval for which I would have been responsible and which I am confident I would recall. I do not, either on this occasion or on any other and accordingly I cannot support Mr Balabouhin’s claim in this regard and find it highly improbable.”
Legislation
34. The legislation relevant to this application is contained in the Act, and in particular, section 9 which states:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
35. Section 24 of the Act is also applicable and says:
“24 Special Rate of Pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
36. Subsections 120(1) and 120(3) of the Act provide that the standard of proof which applies in relation to the applicant’s operational service is that of reasonable hypothesis. The standard of proof with respect to diagnosis of a condition is that of reasonable satisfaction, as is the assessment of pension.
37. If the applicant is to succeed, the applicant’s hypotheses must satisfy the following Statements of Principles:
§Post Traumatic Stress Disorder – Instrument No 3 of 1999 as amended by Instrument No 54 of 1999
§Depressive Disorder – Instrument No 58 of 1998
§Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998
38. In submissions, the applicant’s Counsel noted that the evidence provided by the applicant and Mr Christensen confirmed the event with the head occurred. They both recalled it, although Rear Admiral Woolrych did not recall it. Counsel noted that, although there was a slight difference in the accounts of the applicant and Mr Christensen with respect to whether the bag and the head were thrown overboard or just the head was tipped out of the bag overboard, showed that they had an independent recollection of the event, although slightly different.
39. Counsel suggested that it should not make any difference that the ship’s log was not available. In this regard he referred to section 119 of the Act. Counsel for the applicant noted that Commodore Mulcare had only spoken to two people who may not have been available at the time. Other officers may have been available. Counsel for the applicant contended that the Tribunal should regard both the applicant and Mr Christensen as giving credible consistent evidence. Counsel noted that the applicant seeing the head was the result of an atrocity. Counsel noted that the statement given by Mr Grant Allen, contained at folio 76 of Exhibit 2, was unchallenged evidence. It states:
“I have known John Balabouhin from some twenty-three years, during which period he has performed his duty to the highest degree. He is loyal and of good nature and above all, trustworthy in all aspects.
However there is a side of John that cannot be explained, he for no apparent reason would display anger and violence towards his co-workers, to the extent where on one occasion, he had to be pulled off a person as he would have thrown him through a window.
I witnessed this behaviour on several occasion over the years. For no apparent reason John would go off and sometimes be irrational until he was calmed down. There appeared to be no pattern or logical reason for John’s actions.
Other than his inability to control himself during these periods, he has shown great respect to all his fellow workers and John also had the respect of his fellow workers.
I am submitting this as a reflection of events that have occurred over the last twenty plus years whilst working alongside John as an Aviation Firefighter.
The above is mentioned with no intent of malice or ill feelings.”
40. Counsel for the applicant referred to the report of Dr Johnstone (at folio 29 of Exhibit 1) where, in response to the question “What was his last occupation and the reason for cessation of employment?”, Dr Johnstone replied “Air-port fire fighter. Fear & anxiety & breathlessness”. He also referred to folios 33 and 34 of Exhibit 1 where, in response to the question “Describe the subjective distress that Post Traumatic Stress Disorder causes Mr Balabouhin”, he replied “Anxiety/depressive; flash backs as in nightmares; loss of concentration”.. And later, in response to the request to “List the manifest features of Post Traumatic Stress Disorder you have observed?”, Dr Johnstone noted “pre-occupation restless pacing; tremor; burst of anger; pressured speech”.
41. Counsel noted that the head incident had happened and was a stressor in respect of the relevant parts of the SoPs. It was submitted that a reasonable hypothesis had been raised connecting the PTSD with the applicant’s war service, which had not been disproved by the respondent.
42. It was further submitted that the applicant was entitled to pension at the Special Rate. The applicant’s Counsel rejected the contention made by the respondent that section 24(1)(c) is not satisfied as when the applicant ceased work he was not incapable of working at the time. Counsel also rejected the contention made by the respondent that the ameliorating provisions of section 24(2)(b) are not satisfied because the applicant has not genuinely sought work since accepting the redundancy.
43. In this regard the applicant’s Counsel relied on the evidence of the applicant that the applicant believed that he was forced to cease work because of his war-related disabilities alone. Counsel for the applicant referred to the letter of Mr Grant Allen (referred to previously) and the report of Dr Johnstone who stated that he ceased work because of “fear, anxiety and breathlessness”. Counsel noted that the conditions listed as preventing the applicant from working were listed as “Post Traumatic Stress Disorder and Pleural Plaques”..
44. Counsel for the applicant noted that the applicant was incapable of working for more than eight hours per week and referred to the report of Dr Hargreaves of 17 March 2000 and the opinion of Dr Johnstone of 22 February 2000 indicating that the medical conditions preventing or restricting the applicant’s capacity to work were Post Traumatic Stress Disorder and Pleural Plaques, which Counsel noted were both accepted disabilities.
45. The respondent contends that the applicant ceased work because of the following factors:
(a) his war-caused and claimed conditions;
(b) the availability of a redundancy package;
(c) the availability of a service pension; and(d) a non-war-caused respiratory condition.
46. The respondent submitted that there is a prima facie case that the applicant was capable of working, albeit with difficulty – certainly for more than twenty hours per week. This is based on the evidence of Mr Allen and the applicant did not receive medical advice to cease work.
47. The respondent referred the Tribunal to the decision of Forbes v Repatriation Commission [2000] FCA 328 where it is stated that:
“An applicant will fail the ‘alone test’ in section 24(1)(c) if there is any factor, other than his war-caused incapacity, which acts in combination with his war-caused incapacity to prevent him from working. It is not necessary that this factor be sufficient, in itself, to prevent him from working.”
48. In this regard the respondent referred to the non-war-caused respiratory condition and in particular the comments in Exhibit 6 which state:
“There were times when I was extremely breathless after an exercise or a drill…
…
Between my breathlessness, tinia [sic] and my left ear condition, I have not been a happy chappy, in fact I get very depressed and moody.”
49. The respondent also referred to a report of Dr Finnimore (Respiratory Physician) dated 7 May 1998 (folio 10, Exhibit 1) where the doctor refers to chronic airflow limitation and symptomatic breathlessness. The respondent also referred to the report of Dr Hargreaves dated 17 March 2000 (folio 50 Exhibit 1):
“Regarding his decision to leave work, in my opinion the proportion of attribution to Post Traumatic Stress Disorder was 25% and to respiratory problems was 75%.”
50. The respondent also noted other evidence in respect of the applicant’s respiratory condition and which led to a conclusion that:
“(a)At the date of ceasing work the applicant suffered and continues to suffer from a respiratory condition, however diagnosed, which is unrelated to his war service, and
(b) It was not contributable, but made a significant contribution to his decision to accept a redundancy from the often physically demanding occupation of fire fighter.”
51. The respondent also noted that the applicant appears to suffer from a rotator cuff lesion, sleep apnoea, and obesity which would all impact to some extent on his ability to work.
52. The respondent rejected the applicant’s evidence in respect of the head incident noting that there were discrepancies between the evidence given by the applicant and Mr Christensen.
53. The respondent noted that the Executive Officer could not remember bringing twenty people on board or the incident occurring. The respondent noted that the incident should have been reported in the Report of Proceedings. Accordingly, the respondent contended that the Tribunal should reject the incident as having occurred in the way described by the applicant or at all.
54. In any event the respondent stated that to satisfy the definition of “stressor” the applicant would have to experience intense fear or helplessness. The respondent argued that even if the event did occur as described by the applicant, it could not be regarded as a serious stressor. The respondent referred to the Tribunal to the decision of Re Rice and Repatriation Commission [2003] AATA 143.
55. In respect of the issue as to whether the applicant is entitled to General Rate or Special Rate, the respondent noted that a proper assessment of the lifestyle rating undertaken by it included that the respondent was in fact entitled to 60% of the pension rate rather than 70% as assessed. However, the respondent submitted that it would not seek recovery of any overpayment as the mistake had been made by the Commission. The respondent submitted that the correct approach was for the Tribunal to remit the matter to the Commission for reduction of pension from the first available payday.
56. The respondent noted that if the claimed conditions were accepted the appropriate rating rounded up would be 60 points. For 60 points, the average lifestyle rating is 4, which equates to a pension rate of 100%. Accordingly, the respondent stated that if the psychiatric conditions are accepted as war-caused an assessment of 100% of the General Rate would be appropriate with effect from 9 February 2000.
Consideration
57. The applicant seeks to raise a reasonable hypothesis that conditions of post traumatic stress disorder, alcohol abuse/dependence and depressive disorder are war-caused conditions. These conditions are diagnosed by Dr Hargreaves, in his report dated 22 November 1999, and Dr Mulholland, in his report dated 16 October 2001. In his report, Dr Mulholland opines:
“23.1Assuming that what the veteran reports to be correct or substantially correct then he is comorbid for the following conditions:-
·post traumatic stress disorder
·alcohol abuse/dependence.
23.2There are some elements of depression but depression does not seem to be a significant or consistent enough issue to make a separate diagnosis and therefore depressive features are subsumed into concept of PTSD.”
58. In so far as the claim for depressive disorder is concerned the Tribunal accepts the opinion of Dr Mulholland as set out above that the any depression which the applicant suffers is “subsumed into concept of PTSD”.. Accordingly, the Tribunal is satisfied, on the balance of probabilities, that a diagnosis of depressive disorder cannot be made in this case and so finds.
59. This leaves for consideration, the conditions of post traumatic stress disorder and alcohol abuse/dependence. The Tribunal finds that the applicant suffers from these conditions. In considering whether the conditions are war-caused, the Tribunal has had regard to the decision in East v Repatriation Commission (1987) 74 ALR 518, with respect to the plain meaning of the word “hypothesis” where it was said:
“A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’.”
60. It was also noted in that decision that:
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
61. In Repatriation v Bey (1997) 47 ALD 481, a Full Federal Court of five judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be ‘reasonable’ … it must be pointed to or supported, and more merely left open as a possibility, by the material before the decision maker.”
62. In Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey J concluded:
“The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”
63. The decision in Deledio set out four stages which should be followed in deciding this application for review, namely:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11) [of the 1986 Act]. If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
64. In this case the applicant relies on the head incident as a severe stressor leading to diagnosed symptoms of post traumatic stress disorder, alcohol abuse/ dependence and depressive disorder.
65. The Tribunal considers there is sufficient material before it that points to an hypothesis that connects post traumatic stress disorder, alcohol abuse/dependence and a depressive disorder with the circumstances of operational service, namely the exposure to stressors during operational service.
66. In keeping with the process set out in Deledio, the Tribunal must now ascertain whether there is in force an SoP applicable to the hypothesis.
67. In this matter, a Statement of Principles exist in respect of post traumatic stress disorder, Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999), in respect of alcohol dependence or alcohol abuse, in particular Instrument No 76 of 1998 and in respect of depressive disorder, Instrument No 58 of 1998.
68. The applicant has based his hypotheses on the following factors in the relevant SoPs:
§Factor 5(a) of SoP Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999): experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder. Where “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.
§Factor 5(a) of SoP Instrument No 76 of 1998 – Alcohol Dependence/ Abuse: suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or, alternatively
Factor 5(b): experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse. Where “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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
69. The applicant contends that his conditions meet the requirements of the respective SoPs. The applicant relies primarily upon one severe stressor in order to satisfy factor 5(a) of the relevant SoP, being the human head incident. In respect of alcohol abuse, the applicant contends that alcohol consumption began on a regular basis in October 1964 which is when the human head incident occurred.
70. In assessing the reasonableness of this hypothesis, the Tribunal must consider whether the head incident could amount to a “severe stressor” as defined in the relevant SoPs. That is, did the applicant experience, witness or was he confronted with, an event that involved actual or threat of death or serious injury, or a threat to his or other people’s physical integrity, which evoked a response of intense fear, helplessness or horror?
71. The meaning of the phrase “experiencing a severe stressor” has been considered in a number of decisions of the Tribunal and the Federal Court. In Stoddart v Repatriation Commission (2003) 197 ALR 283, Mansfield J held:
“The language of the definition of experiencing a severe stressor caters for a person experiencing, or being confronted with, an event involving the threat – of death, serious injury, or harm to physical integrity – if the event said to constitute that threat – judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing the event – is capable of and did subjectively convey the threat.”
72. In Woodward v Repatriation Commission [2003] FCAFC 160 the Full Federal Court considered Stoddart and found the reasoning of Mansfield J to be persuasive.
73. In Repatriation Commission v Stoddart [2003] FCAFC 300, the Federal Court, on appeal by the Repatriation Commission from orders made by Mansfield J, clearly accepted the approach taken by his Honour in respect of the meaning of “threat” as used in the SoP definition. Furthermore, the Full Court agreed with the dictionary definition of threat adopted by Mansfield J, namely “an indication of probable evil to come; something that gives indication of causing evil or harm”; and stated that the description “a risk of death”, “can be used appropriately to describe a clear and present danger of death and a mere possibility of death”.
74. Also of significance is the Full Court’s observation, in addressing what can be described as routine normal service duties, “that events that are objectively ‘neutral in character’ may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time”.
75. The Tribunal is satisfied that the head incident amounted to a severe stressor under the relevant SoPs. The applicant was confronted with an event, which occurred as part of his routine duties, which involved the threat of death or serious injury. It can be said, viewed objectively, there was a possibility the applicant may have been seriously injured or harmed by the Scottish commando, to which he responded with feelings of intense helplessness and horror. As such, a reasonable hypothesis has been established connecting the applicant’s PTSD and his alcohol dependence/abuse with his service.
76. Given that the Tribunal has found that a reasonable hypothesis exists, having regard to the SoPs in force at the time, the Tribunal must now determine whether it is satisfied beyond reasonable doubt that the conditions are not war caused. This will, on the basis of Deledio, require the Tribunal to consider whether there is evidence which proves, beyond reasonable doubt, that the head incident did not occurred. In this regard the evidence of Commodore Mulcare was that:
“5. The veteran says he ‘was on duty as a petty officer’ when he was assisting commandos to come onboard. As a POME, his usual place of duty would have been in a boiler room or elsewhere in the Engineering Department. He would not have had a specific duty of assisting personnel to come onboard, although if he was off watch relaxing on the upper deck, there is no reason why he should not have assisted. However, members of the watch on deck, under a Seaman Petty Officer, would have been responsible for rigging a ladder, securing the boat alongside and supervising the embarkation of personnel. The Executive Officer was invariably present during operations of this nature and, if the embarkation occurred in daylight as claimed, the Commanding Officer, Officer of the Watch and others would have observed it from the bridge. Other officers and sailors on the upper deck would have seen the embarkation – and any resultant fracas.
6. In these circumstances, it is highly unlikely that a POME would, without reporting his find to anyone other than a fellow POME, throw a bag containing a head overboard as claimed. However, if he did, and was threatened by ‘a large Scottish Commando’, it is inconceivable that this would not have come to the notice of everyone nearby, including in particular, the Executive Officer. The story would have become widely known in the ship.”
77. Commodore Mulcare confirmed that Rear Admiral Woolrych, who was the Executive Officer on HMAS Vendetta until 3 September 1964, was of the “very firm view that the alleged incident never occurred as claimed”.. There is nothing in the Report of Proceedings about the incident. Opposed to this evidence is the evidence of the applicant and of Mr Christensen. Mr Christensen said in his statement:
“I think it was you that told him to throw it overboard because of the repercussions that would develop. I know I had the fit of giggles over it. I think the head was like Dyak. All I know he had a hell of a job of severing the head. I often picture that and when I tell quite a few people here in Bundy, they more or less call me a liar, so I tell no-one now.”
78. There are some inconsistencies in this evidence. Mr Balabouhin said that he grabbed the bag with the head in it and threw it overboard. Mr Christensen said that the head was tipped out of the bag. Mr Balabouhin said that the Scottish commando then attacked him. Mr Christensen said nothing about this. Mr Christensen said he had a fit of the giggles but that this was a nervous reaction. Mr Balabouhin said that Mr Christensen “let out a gasp of laughter which was definitely not humour, but was rather horror”.
79. On the one hand the Tribunal has evidence of Commodore Mulcare and Rear Admiral Woolrych that, given the lack of record of the incident and Rear Admiral Woolrych’s role as Executive Officer on the HMAS Vendetta as he then was, it is most unlikely that the event occurred. He said that he would certainly have remembered an event of this type even after all these years. The ship’s log is not available and is therefore of no assistance.
80. Opposed to this is the evidence of both the applicant and Mr Christensen which, despite the inconsistencies, appeared to be a story which could hardly have been made up.
81. The respondent further relied on the fact that the applicant did not mention the head incident to Dr Hargreaves or Dr James as evidence that the event did not occur. The applicant saw Dr James in 1988. Dr Hargreaves in his evidence did not regard the failure to disclose the head incident as being significant but part of the illness.
82. The Tribunal is satisfied, based on the evidence of the applicant and Mr Christensen and the lack of specific evidence from the respondent (it should be noted that Commodore Mulcare only spoke to two officers who were available on the ship at the time) that an incident similar to the one described by the applicant and Mr Christensen did occur. The reasonable hypotheses have not been disproved. As such the Tribunal is not satisfied, beyond a reasonable doubt, that the conditions were not caused by the applicant’s war service.
83. For the reasons given above, the Tribunal is satisfied that the applicant’s PTSD and his alcohol dependence/abuse were caused by his war service. The Tribunal, therefore, sets aside the decision under review in relation to file number Q2001/353 and in substitution therefor finds that the applicant’s post traumatic stress disorder and alcohol dependence/abuse are war-caused conditions.
Is the Applicant Entitled to Pension at the Special Rate?
84. On the evidence available to the Tribunal, the Tribunal is not satisfied that when the applicant gave up work on 14 August 1998 he was totally incapacitated for employment. He was not under doctor’s orders to cease work nor was he then on sick leave. The Tribunal finds that, at the time he ceased work, the applicant was capable of working at least 20 hours per week, although the Tribunal accepts that the applicant was having difficulty with work.
85. Even if the applicant was totally unfit for work the Tribunal is not satisfied that he meets the alone test in section 24(1)(c). In considering this issue the Tribunal has had regard to the decision of Forbes v Repatriation Commission [2000] FCA 328 where Nicholson J noted that an applicant will fail the “alone test” if there are factors other than the applicant’s war-caused incapacities, which act in combination with his war caused incapacities to prevent him from working.
86. The Tribunal is satisfied that the factors which would have contributed to the applicant ceasing work were:
§His war-caused conditions;
§The availability of a redundency package;
§The availability of a service pension; and
§A non-war-caused respiratory condition.
87. The applicant also suffers from rotator cuff lesion, sleep apnoea and obesity.
88. In 2000, Dr Hargreaves opined that the applicant’s respiratory problems contributed 75% to his leaving work, although he expressed the view that the applicant’s PTSD may have exasperated the applicant’s respiratory condition. It is clear from the reports of Dr Finnemore and Dr Allen that the respiratory condition is not war caused: one diagnosing late onset asthma and the other chronic bronchitis.
89. Accordingly the Tribunal is satisfied that the applicant was not incapacitated for work when he left employment and, in any event, is not satisfied he ceased employment due to war-caused factors alone.
90. The applicant admitted that he has not sought work since ceasing employment. Accordingly the applicant cannot rely on the ameliorating provisions of section 24(2)(b) of the Act.
91. Accordingly, the Tribunal affirms the decision under review in relation to file number Q2001/1046.
Decision
92. The Tribunal:
(a) in respect of application Q2001/353, sets aside the decision under review and in substitution therefor determines that the applicant’s post traumatic stress disorder and alcohol abuse/dependence are war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986, with effect from 9 November 1999;
(b)in respect of application Q2001/1046, decides that the applicant is not entitled to pension at the special rate and remits the matter to the respondent for assessment of the percentage of general rate pension payable to the applicant.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 26 March 2003
Date of Decision 3 February 2004
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr M Smith, Departmental Advocate
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