Barry Radnidge and Repatriation Commission

Case [2013] AATA 274

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )
  )        No: 2011/2754
Veterans' Appeals Division  )

Re: Barry Radnidge
Applicant

And: Repatriation Commission
Respondent

CORRIGENDUM TO DECISION [2013] AATA 274

TRIBUNAL:             Senior Member A K Britton
  Dr Alexander, Member

DATE:   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”.

...................[SGD]................................................

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 Alexander
Date 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.

...........[sgd].............................................................

Senior Member A K Britton
Dr I Alexander

Catchwords

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 83

Repatriation 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 Alexander

6 May 2013

  1. 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).

  2. 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.

  3. 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…

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AGLC
Barry Radnidge and Repatriation Commission [2013] AATA 274
Case
[2013] AATA 274
Decision Date

CaseChat Overview and Summary

The case of Barry Radnidge against the Repatriation Commission involved a dispute over the cause of Mr Radnidge's Post-Traumatic Stress Disorder (PTSD). Mr Radnidge, a former member of the Royal Australian Navy, claimed that his PTSD resulted from a life-threatening event during his operational service. The Commission argued that the PTSD stemmed from an event during eligible service. The High Court was tasked with determining which event could be characterised as "life-threatening" and which standard of proof should apply. The outcome of this determination was crucial as it affected the generosity of the compensation Mr Radnidge was eligible to receive.

The central legal issue before the court was whether the "scare charge incident" or the collision between the USS Frank E. Evans and the HMAS Melbourne could be classified as the "life-threatening event" that caused Mr Radnidge's PTSD. The court had to decide which event, if either, met the threshold of being life-threatening and thus fell under the more stringent standard of proof required for operational service, as opposed to the less stringent standard for eligible service. This decision was pivotal in determining the appropriate level of compensation Mr Radnidge was entitled to receive from the Commonwealth.

The court examined the evidence presented regarding both incidents. It noted that Mr Radnidge's testimony and the lack of conflicting evidence, combined with his youth and inexperience, suggested that he genuinely perceived the scare charge incident as life-threatening. The court found that there was sufficient material indicating that Mr Radnidge experienced a life-threatening event during operational service and that this event occurred before the clinical onset of PTSD. Consequently, the court concluded that the decision under review must be set aside, and it ruled that Mr Radnidge's PTSD was indeed war-caused.

The court's decision was based on the principle that there must be material pointing to each element of the claim. It found that the scare charge incident met the criteria for being a life-threatening event during operational service. As a result, the court set aside the previous decision of the Repatriation Commission and ruled in favour of Mr Radnidge, determining that his PTSD was war-caused and thus eligible for compensation under the more generous terms applicable to operational service.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.