Barry Radnidge and Repatriation Commission
[2013] AATA 274
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/2754
Veterans' Appeals Division )Re: Barry Radnidge
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM TO DECISION [2013] AATA 274
TRIBUNAL: Senior Member A K Britton
Dr Alexander, MemberDATE: 8 May 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Where the decision of the Tribunal currently reads “The decision under review is set aside and in substitution it is decided that Mr Radnidge's Post Traumatic Stress Disorder was war-caused”, the decision shall now read “The decision under review is set aside and in substitution it is decided that Mr Radnidge's Post Traumatic Stress Disorder was war-caused. This decision has the effect on and from 13 June 2010 and the matter is remitted to the Commission to assess the rate of pension”.
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Senior Member A K Britton
[2013] AATA 274
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2754
Re
Barry Radnidge
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Senior Member A K Britton
Dr I AlexanderDate 6 May 2013 Place Sydney The decision under review is set aside and in substitution it is decided that Mr Radnidge's Post Traumatic Stress Disorder was war-caused.
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Senior Member A K Britton
Dr I AlexanderCatchwords
VETERANS’ AFFAIRS — Entitlement to pension — Incapacity — war-caused disease — Post Traumatic Stress Disorder — Whether disease was war-caused —Deledio test — Whether the veteran suffered a life threatening event — Whether satisfied beyond reasonable doubt that disease was not war-caused
Legislation
Veterans’ Entitlement Act 1986 (Cth) – ss 9(1); 13(1); 120; 120A
Cases
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Byrnes v Repatriation Commission (1993) 177 CLR 564
Hardman v Repatriation Commission [2005] FCAFC 83Repatriation Commission v Deledio (1998) 83 FCR 82
Secondary Materials
Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008
REASONS FOR DECISION
Senior Member A K Britton
Dr I Alexander6 May 2013
Mr Barry Radnidge served in the Royal Australian Navy in the 1960’s for just over four years. He seeks review of the decision made by the respondent Commission and affirmed by the Veterans’ Review Board, to refuse his claim made under the Veterans’ Entitlement Act 1986 (Cth) (the Act) for a pension on account of incapacity. He contends that his incapacity is the result of “war-caused” post-traumatic stress disorder (PTSD).
The parties agree that Mr Radnidge suffers from PTSD. The issue in dispute is whether his condition was “war-caused”. The answer to that question turns primarily on whether any material exists that points to Mr Radnidge experiencing a “life threatening event” during a period of “operational service” and, if so, whether it is beyond reasonable doubt that his PTSD was not war-caused.
While the parties agree that Mr Radnidge experienced a life threatening event they do not agree on the event that can be so characterised. The event nominated by Mr Radnidge, the so-called scare charge incident, fell within a period of “operational service”; on the other hand, the event nominated by the Commission, namely the collision between the USS Frank E. Evans (the Evans) and the HMAS Melbourne, fell within a period of “eligible service”. Which of these events can be characterised as “life threatening” is relevant because different standards of proof apply in determining whether the condition was said to be caused by operational, as opposed to eligible service, the latter being more generous.
Background
Mr Radnidge enlisted in the Royal Australian Navy shortly after turning 16 years of age. He claims that prior to his enlistment he was a happy and healthy teenager and had no psychiatric or psychological problems.
According to Mr Radnidge, he found his period of service with the Navy to be extremely stressful. He claims that the alleged scare charge incident occurred during the first of three tours to Vietnam on the troop ship carrier HMAS Sydney. He claims that when working below deck while the Sydney was anchored in Vung Tau harbour between 07:20 and 14:50 hrs on 27 December 1967, he heard a scare charge exploding, which he mistook for an attack upon the Sydney. He claimed that he panicked and fled, fearing that he would be trapped below deck.
Mr Radnidge absconded on return to Australia after his second trip, on his account, because he was fearful of returning to Vietnam. He was persuaded by his father to return to the Navy and two days later commenced his third tour to Vietnam.
Mr Radnidge was aboard the HMAS Melbourne on 3 June 1969, when it collided with the USS Frank E. Evans in the South China Sea. Seventy lives were lost. Mr Radnidge testified that he witnessed the sinking of the bow section of the Evans and participated in the rescue effort. After the collision Mr Radnidge remained on the HMAS Melbourne for a further 12 months.
In 1970, on return from a seven month trip to Japan, Mr Radnidge became extremely ill. Naval records state that he was suffering from anorexia, nausea and vomiting and appeared to be “acutely depressed”. He was admitted to the HMAS Penguin in September 1970 where he was diagnosed as suffering from “anxiety depression”.
In November 1970, consultant psychiatrist, Dr J McGeorge recorded that Mr Radnidge’s anxiety/depression had materially worsened and recommended his discharge. Naval doctors assessed Mr Radnidge’s condition as constitutional in origin and aggravated by naval service. Mr Radnidge was discharged from the Navy in January 1971.
Statutory Framework
Where a veteran has become incapacitated by a war-caused disease, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the veteran (s 13(1) of the Act). A disease is taken to be war-caused where it resulted from an occurrence that happened while the veteran was rendering operational service (s 9(1) of the Act).
The alleged event said to have resulted in Mr Radnidge developing PTSD occurred while he was serving aboard the Sydney during a period of “operational service”. Accordingly the question of whether his PTSD was war-caused must be assessed by applying the standard of proof set out in ss 120 and 120A of the Act.
Section 120 provides:
(1) Where a claim under Part II for a pension in respect of the incapacity from ... disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine that the injury was … a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) ... in respect of the incapacity of a person from injury or disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
…
(b) that the disease was a war-caused disease ...
...
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
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(4) Except in making a determination to which subsection (1) ... applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act ... including the assessment or re-assessment of the rate of a pension granted under Part II ... , decide the matter to its reasonable satisfaction.
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(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
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(b) a disease contracted by a person is a war-caused disease ...; [or]
...
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Section 120(3) is affected by s 120A(3) which provides:
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) …
…
that upholds the hypothesis.
The approach to be taken when applying these provisions was authoritatively determined by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 (Deledio) and requires the decision-maker to:
(i)determine whether all of the material points to a hypothesis connecting the injury with the circumstances of the veteran’s service;
(ii)if so, ascertain whether there is in force a relevant Statement of Principles;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable Statement of Principles; and
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s incapacity did not arise from a war-caused injury.
DOES THE MATERIAL “POINT TO” A HYPOTHESIS CONNECTING MR RADNIDGE’S PTSD TO SERVICE?
There is no argument that: the material points to an hypothesis connecting PTSD with the circumstances of Mr Radnidge’s service and a relevant Statement of Principles is in force (the Statement of Principles concerning Post-traumatic Stress Disorder No. 5 of 2008 (the Statement)). The issue in dispute is whether Mr Radnidge satisfies Steps 3 and 4 of Deledio.
Step 3 will be satisfied if the advanced hypothesis is consistent with the template found in the Statement. Under the Statement, before it can be said that a reasonable hypothesis has been raised connecting Mr Radnidge’s PTSD with the circumstances of his operational service, at least one of the factors listed in cl 6 must exist. Mr Radnidge relies upon cl 6(a):
experiencing a category 1A stressor, namely experiencing a life threatening event, before the clinical onset of PTSD.
The Statement defines a category 1A stressor to mean:
... one or more of the following severe traumatic events:
(a) experiencing a life-threatening event
…
Fact-finding at this stage is impermissible (Hardman v Repatriation Commission [2005] FCAFC 83). Nonetheless there must be “material” that “points to” each element of the Statement. In this case there must be material that points to:
(i) Mr Radnidge experiencing a life threatening event during operational service, and
(ii) That event having occurred before the clinical onset of PTSD.
Does the material point to Mr Radnidge experiencing a life threatening event during operational service?
The parties agree that that there is material pointing to Mr Radnidge hearing the explosion of a scare charge while the Sydney was anchored in Vung Tau harbour on 27 December 1967 but disagree as to whether that incident can be characterised as a “life threatening event”.
Material about the scare charge incident
Mr Radnidge testified that apart from a training run to Jervis Bay NSW (a round trip of about 400 kilometres) the trip to Vietnam on the Sydney (20 December 1967 to 3 January 1968) was the first time he had been at sea and he was extremely nervous. He claimed that the noise and activity generated by the troops carried by the Sydney together with the stories told by members of the crew about alleged atrocities committed in Vietnam, added to his feelings of anxiety. He also claimed that as the Sydney approached Vietnam “everyone” began to quieten down and become tense, further increasing his feelings of anxiety.
According to Mr Radnidge during training for his first trip to Vietnam he viewed documentaries of enemy frogmen placing explosive devices on the side of ships, which when detonated caused fires to break out and loss of life. He states that it was his understanding that the Navy screened these documentaries during training to impress upon the crew the need to be alert and vigilant, especially while on lookout duty.
In a statement prepared for these proceedings, dated 30 January 2012, Mr Radnidge wrote:
The first time I heard scare charges go off, I was on duty in the laundry during the 24-48 hour ‘turnaround’ in Vung Tau Harbour. I heard this sound on my left, like a thump. It was a distinctively different sound to those I had heard before. Anything that exploded in the water made this thump sound, different to air explosions.
Being inside, I was unable to identify what it was, the direction it had come from and who was responsible for the object that had caused the sound or if we had been targeted and that I was going to die. This was my first trip and this was the first time I had heard something go off below decks. The visions of the film came back to me. I was terrified.
I did not know what would happen when the ship was hit. I expected it to be like in the films. I was terrified of drowning or an oil fire and burning to death. I knew all the compartments would be sealed off, immediately trapping anyone who couldn’t get out from below the waterline and I would die. I thought the ship had been targeted and that we were all in mortal danger.
My reaction was spontaneous as I feared for my life and the lives of my fellow seamen. I started climbing the ladder upwards from inside the laundry. A voice from someone in the laundry with me, who had also heard the thump, called “stop, comeback”. They explained it was a scare charge.
Mr Radnidge also claimed that on the morning of the incident he was agitated and alert because of lack of sleep having finished lookout duty only four hours before he was required to commence laundry duty at 07.50.
Mr Radnidge conceded that he must have been mistaken in recalling it to have been “well below the waterline” when taken to a diagram of the Sydney in cross-examination which shows that the laundry was on the deck directly above the waterline. He also conceded as shown by that diagram, that the ladder connecting the deck where the laundry was located and the deck above, which he claimed he fled to on hearing the explosion, was not within but immediately outside the laundry area.
Mr Radnidge gave this explanation for the strength of his reaction to the scare charge explosion: his understanding that if the ship was damaged as he thought had occurred, a “Condition ZULU” would be activated, the ship would be “locked down” and as a consequence he would be trapped below deck. He claimed that he had been instructed that when a “Condition ZULU” was announced the crew were required to lock down all hatches. He stated that it was his understanding that once locked, a hatch could only be unlocked from above, and as a result, any member of crew below the hatch would be trapped. He reasoned that if were otherwise, any trapped member of the crew would simply unlock the hatch making it impossible to contain the hazard.
At the request of the Commission, Commodore Philip Mulcare prepared a report for these proceedings and gave oral evidence. He disputed Mr Radnidge’s claims that (i) the hatches on the Sydney could only be unlocked from above; and (ii) when the Sydney was anchored in Vung Tau harbour in December 1967 scare charges were regularly thrown from the ship itself.
Tendered in these proceedings was a diagram of the Sydney, which revealed that the hatches connecting the deck where the laundry was located and the deck above, were rectangular in shape and about four by three feet in dimension. Within each hatch was a smaller oval shaped hatch. According to CDRE Mulcare, if a “Condition YANKEE” was activated the rectangular hatches would be closed but the oval hatches would remain open. He explained that the oval hatches were only closed when the alert was elevated to a “Condition ZULU” and unlike rectangular hatches — which employed a one way locking system that could only be unlocked from above — oval hatches could be unlocked from both sides. In his opinion that would have been evident to anyone who had examined a hatch on the Sydney. He thought it improbable that Mr Radnidge would not have known this at the time of the alleged scare charge incident given that by that stage of the journey he would have climbed through the hatches on numerous occasions.
According to CDRE Mulcare in 1967 the Navy considered the principal threat to ships anchored in Vung Tau harbour to be surface or underwater attack by enemy divers or floating mines. On his account, defensive measures collectively known as “Operation AKWARD” were employed throughout this period. This involved patrol boats towing “anti-swimmer” devices (constructed from razor wire, grappling hooks and weights), and throwing scare charges as directed.
CDRE Mulcare explained that the scare charges used by the Sydney during Mr Radnidge’s first tour to Vietnam consisted of a one pound demolition charge fitted with a fuse. He stated that the charge exploded at a depth of between six to seven feet and the sound heard on its explosion varied according to the distance from the ship, depth of water etc. On his account the sound of a scare charge thrown from about 70 to 100 metres upstream would be muffled and would probably have been heard as a “thud” in compartments below the waterline. He wrote:
Scare charge explosions near HMAS SYDNEY would have been louder, and if one occurred close alongside it could have startled un-alerted personnel in compartments below the waterline, particularly those in compartments near the explosion.
According to CDRE Mulcare scare charges were only thrown from the Sydney in response to an actual or perceived direct threat and had that occurred, a record would have made in the ship’s “Record of Proceedings”. He wrote that not only was there no evidence of such record being made but there was no evidence of any unusual activity while the Sydney was anchored in Vung Tau harbour on 27 December 1967. In his opinion, it was a remote possibility that scare charges had been thrown from the Sydney on that morning as a precautionary measure.
He explained that while the Sydney was at anchor scare charges were probably thrown from motor cutters (small motorised boats used by the Navy) patrolling upstream from time to time. He said that in periods of “slack water” — 30 minutes either side of low and high tide — naval divers conducted searches of the Sydney’s hull and during these periods scare charges were not used within 180 metres of the ship.
CDRE Mulcare agreed with the proposition that the noise heard from inside a ship of a scare charge being detonated, would be considerable and frightening if unexpected. He also agreed with the following comment attributed to a veteran by Rodney Nott & Noel Payne in The Vung Tau Ferry: HMAS Sydney and escort ships - Vietnam 1965-1972 (Rosenthal Publishing, 4th ed. 2008) at p 71:
[those] who filled action stations below decks ... suffered, in varying degrees, claustrophobic anxiety, disorientation and fright ... as loud explosions from the action ashore and from scare charges reverberated through the ship.
Could the scare charge incident be characterised as a “life threatening event”?
In Border v Repatriation Commission(No 2) (2010) 191 FCR 163, Reeves J after reviewing the authorities, set out at [67] the approach to be taken when assessing for the purpose of the Statement whether a veteran could be said have “experience[d] a life–threatening event” within the meaning of paragraph (a) of the definition of “a category 1A stressor”:
It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, 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. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.
The Commission contends that it is simply implausible to suggest that Mr Radnidge, or a reasonable person in his position, would have perceived the scare charge event to be life threatening or that that perception could be said to have been a reasonable one.
Mr Radnidge’s circumstances and knowledge
In determining whether a hypothetical reasonable person would have perceived the scare charge incident to be life threatening and whether that perception was a reasonable one, we must place them in the circumstances of, and attribute to them, the knowledge said to be held by Mr Radnidge.
There is no argument that the scare charge incident did not place Mr Radnidge or any crew member in danger. Nor is there any argument that within a short period after the explosion, possibly less than a minute, Mr Radnidge understood that to be the case. There is some conflicting material about other aspects of the scare charge incident and the knowledge held by Mr Radnidge at the time. For example, CDRE Mulcare thought it improbable that even a novice sailor would not have understood that the hatches could be unlocked from below. At this stage of Deledio, our task is not to weigh the evidence and make findings of fact, but rather to determine whether there is some material that points to each element of the hypothesis.
Mr Radnidge argues that, in assessing whether a hypothetical reasonable person would have perceived the subject event to be life threatening, the following is relevant:
This was the first time he had: (i) been at sea and (ii) heard the explosion of a scare charge
The noise, which he likened to a “thump”, was different to any noise he had heard on the Sydney
He had not been forewarned of the explosion
He was anxious throughout the voyage and extremely anxious when the Sydney entered Vung Tau harbour
At the time of the incident he was agitated and alert because of lack of sleep and the pressure of lookout duty (completed four hours before commencing laundry duty)
He understood that there was a risk of explosive devices being attached to the side of the Sydney
He understood that if the ship was so damaged the hatches would be locked and he would be trapped
From the laundry he was unable to see outside the ship and what had caused the “thud”
In our opinion the scare charge incident judged objectively, from the point of view of the notional reasonable person in the same position and possessing the knowledge held by Mr Radnidge, was capable of, and did convey the threat of death. It is no answer, as we understand the Commission to suggest, that there is no evidence that any of Mr Radnidge’s colleagues perceived the incident to be life threatening. The conclusion that the sound was the result of an attack on the Sydney could not in our opinion be described as irrational or far-fetched given the relevant circumstances: a young sailor in a war zone for the first time, who had not previously been exposed to the sound of a scare charge, situated below deck and unable to gauge the source of the noise.
It is not determinative that within a very short period the hypothetical person learnt that the noise did not emanate from enemy attack. The assessment of whether the incident was life threatening must be undertaken at the time of the incident.
For these reasons we conclude that the alleged incident constituted a life threatening event for the purpose of the Statement.
Does the material point to the scare charge occurring before the clinical onset of PTSD?
We accept, as agreed by the parties, that while difficult to pinpoint the date of clinical onset of Mr Radnidge’s PTSD, the material points to it postdating the scare charge incident.
Can we be satisfied beyond reasonable doubt that Mr Radnidge’s PTSD was not war-caused?
The final issue to be decided is whether we can be satisfied, beyond reasonable doubt, that Mr Radnidge’s PTSD was not war-caused: s 120(1) of the Act. In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court explained (at 571), that by the operation of s 120(1), a claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
Neither party bears an evidentiary onus (s 120(6) of the Act).
The Commission contends that the weight of evidence indicates that the traumatic event which caused Mr Radnidge to suffer PTSD was the collision between the Melbourne and the Evans. In addition the Commission contends that the following facts on which the hypothesis advanced by Mr Radnidge rests are disproved beyond reasonable doubt:
That Mr Radnidge understood he was at risk of being trapped below deck;
That scare charges were exploded in close proximity to the Sydney;
That Mr Radnidge perceived the event to be life threatening.
Is it disproved beyond reasonable doubt that the collision between the Melbourne and the Evans was the traumatic event that triggered Mr Radnidge’s PTSD?
Mr Radnidge concedes that witnessing the collision with the Evans and its aftermath, was a significant event in his psychological health. However, he insists that he was more affected by the scare charge incident. He claims that during that incident he believed he and the crew were in immediate danger but he did not hold such fears when the Evans collided with the Melbourne.
In the context of his claim for compensation, Mr Radnidge was assessed by psychiatrists Drs Leonard Lambeth, John Roberts, Graham Altman and Anthony Dinnen. He was also assessed by occupational physician, Dr Robin Chase. Each prepared reports setting out their respective opinions on diagnosis and causation. All considered that his period of service in Vietnam had a detrimental effect on Mr Radnidge’s mental health. Of the psychiatrists, all but Dr Roberts concluded that Mr Radnidge was suffering from PTSD.
In a report dated 21 November 2012, Dr Dinnen recorded that Mr Radnidge reported intrusive thoughts about incidents that had occurred during his time in the Navy, including the scare charge incident and the collision with the Evans. He wrote that when he assessed Mr Radnidge in 2007, he had concluded that Mr Radnidge did not develop PTSD until after the collision with the Evans. This is consistent with the opinion of his treating psychiatrist. Dr Dinnen went on to state that Mr Radnidge’s experience in Vietnam, particularly the scare charge incident caused him to suffer an anxiety state which he now believes would more accurately be described as PTSD.
Treating psychiatrist Dr Lambeth, in a report dated 1 September 2004, wrote that Mr Radnidge suffered from PTSD and an anxiety disorder. In that report he recorded Mr Radnidge’s account of being concerned about scare charges and enemy divers planting mines while onboard the Sydney but made no specific reference to the scare charge incident Mr Radnidge described in these proceedings. In his opinion, Mr Radnidge’s tours to Vietnam caused him to suffer an anxiety disorder and by the time the collision with the USS Evans took place he was vulnerable to, and developed, PTSD.
Dr Altman in a report dated 10 February 2010 wrote that: ‘as a result of the [three] above named traumatic experiences in Vietnam [which included the scare charge incident] and the Melbourne–Evans collision, Mr Radnidge now suffers from a chronic PTSD …’
Dr Roberts is of the opinion that the diagnosis of PTSD in untenable. In a report dated 8 February 2008 he recorded that Mr Radnidge found the experience of being on lookout duty on the Sydney to be a ‘huge responsibility’ and his description of scare charges as ‘frightening’. In Dr Robert’s opinion the stressors described by Mr Radnidge of ‘[suffering] the stress of scare charges, bombing in hills, being told of, and looking out for, mines’ did not have the capacity to produce PTSD. On the other hand he had ‘no doubt’ that the collision with the Evans could have given rise to PTSD.
In a report dated 11 April 2008, Dr Chase wrote that in his opinion, Mr Radnidge was a fairly immature young man during his tours to Vietnam and had or had a propensity to develop, an anxiety problem, and that this was either brought to light, or made worse, by his experience in Vietnam and made ‘very much worse’ by the collision with the Evans.
It seems to us that, consistent with the weight of medical evidence and the relative objective seriousness of the two events, witnessing the collision with the Evans is more likely to have been the traumatic event that caused Mr Radnidge to develop PTSD. His claim that he was more affected by the scare charge incident must be assessed in light of the fact that he is neither independent nor an expert in the field of psychiatry. In oral evidence given in these proceedings, Mr Radnidge in our opinion tended to downplay the emotional impact of the collision. The unsatisfactory explanation given by Dr Dinnen for his decision to vary his original opinion that Mr Radnidge’s PTSD was triggered by the collision; the comment made by Dr Chase of Mr Radnidge reporting not being subjected to “any significant stressors” in Vietnam; together with the fact that most of the medical reports before the Tribunal make no specific mention of the scare charge incident as described in these proceedings, raises real doubts about whether the scare charge incident in fact occurred and its role in the development of Mr Radnidge’s PTSD.
While there is powerful evidence that the traumatic event that caused Mr Radnidge to suffer PTSD was his witnessing the collision with the Evans, we could not be satisfied of that beyond reasonable doubt. In reaching that conclusion, we have taken into account the opinion of Drs Dinnen and Altman — that the, or one of the, traumatic events that caused Mr Radnidge to suffer PTSD was the scare charge incident — together with his own account of finding the experience extremely traumatic.
Is it disproved beyond reasonable doubt that Mr Radnidge feared he had been trapped below deck?
The Commission contends that it is implausible, as claimed by Mr Radnidge, that at the time of the scare charge incident he understood that the hatches could only be unlocked from above and, as a consequence, any members of the crew situated on a deck below a locked hatch, would be trapped. In support, the Commission points to the evidence given by CDRE Mulcare that: (i) it would be self-evident to anyone who had examined the Sydney’s oval hatches that they could be unlocked from both sides; (ii) this information would have been conveyed to Mr Radnidge during training.
We accept that prior to the scare charge incident Mr Radnidge participated in training which involved simulated emergency exercises. We also accept that he was probably given some information about the operation of the hatches. While unlikely, it is not implausible given his youth and inexperience that Mr Radnidge did not understand that the rectangular and oval employed different locking systems. In the absence of any particulars about the training provided to Mr Radnidge and any direct evidence to contradict his claimed ignorance, we could not be satisfied beyond reasonable doubt that at the time of the scare charge incident he understood that the oval hatches could be opened from below.
Is it disproved beyond reasonable doubt that Mr Radnidge did not as claimed hear a scare charge exploding?
Given the absence of an incident report, we accept as CDRE Mulcare contends, that it is highly unlikely that a scare charge would have exploded in close proximity to the Sydney on the morning of 27 December 1967. However as explained by CDRE Mulcare, scare charges were routinely thrown from motor cutters and the noise of their explosion carried up to 100 metres. His description of the sound heard below deck of their explosion of a “muffled thud” is consistent with that given by Mr Radnidge. Given the likelihood that scare charges were thrown from motor cutters during the relevant period, together with the absence of any evidence to contradict Mr Radnidge’s claim, we conclude that his claim of having heard a scare charge exploding, is not disproved beyond reasonable doubt.
Is it disproved beyond reasonable doubt that Mr Radnidge did not perceive the scare charge to be life threatening?
In the absence of any conflicting evidence together with his youth, inexperience and some medical opinion that he had a predisposition to anxiety, we were not satisfied beyond reasonable doubt that Mr Radnidge did not perceive the scare charge incident to be life threatening.
Conclusion
We are of the opinion that there is material that points to each element of the Statement. We are not satisfied beyond reasonable doubt that Mr Radnidge’s PTSD was not war-caused. It follows that the decision under review must be set aside and in substitution it is decided that Mr Radnidge’s PTSD was war-caused.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr I Alexander ............[sgd]...........................................................
Associate
Dated 6 May 2013
Date(s) of hearing 9 and 10 April 2013 Counsel for the Applicant Craig Colborne Solicitors for the Applicant KCI Lawyers Advocate for the Respondent Department of Veterans' Affairs Advocacy Section
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