Bawden and Repatriation Commission
[2011] AATA 283
•2 May 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3864
VETERANS’ ENTITLEMENTS DIVISION ) Re RODNEY BAWDEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date3 May 2011
PlaceMelbourne
CORRIGENDUM TO DECISION
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs the Registrar to amend the decision dated 2 May 2011 as follows:
(a) paragraph forty-two, first line, delete the comma after the word ‘finding’;
(b) delete paragraph forty-three and replace with:
‘In respect of factor 6(a) of SoP Nº 1 of 2009 and factor 5(a) of SoP Nº 76 of 1998, in view of the Tribunal’s conclusion about the date of clinical onset of alcohol dependence, in 1965 Mr Bawden did not suffer from a clinically significant psychiatric condition, so the material does not point to a reasonable hypothesis linking Mr Bawden’s alcohol dependence to his operational service with respect to these factors.’; and
(c) paragraph forty-six, second line, delete ‘his’ and insert ‘the’.
................[signed]..............................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 283
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3864
VETERANS' ENTITLEMENTS DIVISION ) Re RODNEY CHARLES BAWDEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date2 May 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
................[signed]..............................
Senior Member
VETERANS' AFFAIRS – veterans’ entitlements - naval service in Vietnam – post-traumatic stress disorder - traumatic event - whether condition diagnosed and war-caused - alcohol dependence - depressive disorder - whether war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Delahunty v Repatriation Commission [2004] FCA 309
Lees v Repatriation Commission [2002] FCAFC 398
McKerlie v Repatriation Commission [2010] FCA 1127
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Hill [2008] FCA 50
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
2 May 2011 G. D. Friedman, Senior Member 1.
Rodney Bawden served in the Royal Australian Navy (the navy) from
8 January 1964 to 7 January 1976. His service included nine voyages to Vietnam on HMAS Sydney between 1967 and 1969, and this constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2. The respondent has accepted that Mr Bawden’s medical conditions of bilateral sensorineural hearing loss and tinnitus are war-caused, and he receives a disability pension at 40 per cent of the general rate. The respondent rejected his claim that post-traumatic stress disorder (PTSD), alcohol dependence or abuse and depressive disorder are war-caused conditions. His claim was refused by the Veterans’ Review Board, and he is seeking review of the decision.
ISSUES
3. The issues before the Tribunal are:
· Does Mr Bawden suffer from PTSD? If so, is the condition war-caused?
· If not, does Mr Bawden suffer from any other psychological condition including alcohol abuse or dependence and depressive disorder? If so, is each condition war-caused?
DOES MR BAWDEN SUFFER FROM PTSD?
4.
The Tribunal is required to determine to its reasonable satisfaction whether
Mr Bawden suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
5. In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV) a diagnosis of PTSD requires that:
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person’s response involved intense fear, helplessness, or horror…
Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity. In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said at [48]:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
This reasoning was followed in Repatriation Commission v Hill [2008] FCA 50.
6. In Woodward v Repatriation Commission (2003) 131 FCR 473 the Full Federal Court approved the decision in Stoddart v Repatriation Commission [2003] FCA 334. The Court held at [140]:
…It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to MrWoodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more "events" which precipitated the perception and that the events were real in the sense that they had an objective existence. If the reasoning of Mansfield J is accepted, the material before the AAT was capable of satisfying the requirements of the definition of "experiencing a severe stressor" in the SoP in relation to the incident on patrol.
7. In Delahunty v Repatriation Commission [2004] FCA 309 Tamberlin J said at [27]:
…While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
8. Mr Bawden told the Tribunal that he joined the navy in 1964 as a Junior Recruit at the age of 15 years. He undertook initial training at HMAS Leeuwin in Western Australia and sea training on HMAS Anzac. He then began specialist training as a radio operator at HMAS Cerberus. In 1967 he joined the troop carrier HMAS Sydney as an Able Seaman Radio Operator, and made the following trips to Vung Tau Harbour in Vietnam:
·8-22 April 1967
·28 April-12 May 1967
·19 May-14 June 1967
·20 December 1967-3 January 1968
·17 January -16 February 1968
·27 March-26 April 1968
·21 May-13 June 1968
·13-28 November 1968
·8-25 February 1968
9. Mr Bawden stated that prior to his operational service in Vietnam he had no emotional problems, and enjoyed his naval career. He said that he was relying on a particular event in Vietnam that caused significant distress when he observed a small wooden vessel (known as a sampan) that was destroyed by a naval patrol boat (the sampan event). He said that he had begun to discuss the event only in the past few years. In a written statement he said that he could not remember on which visit to Vietnam the event occurred. He said that HMAS Sydney was at anchor in Vung Tau Harbour and he had completed his shift as a radio operator and was standing on the flight deck, when he heard a noise from a patrol boat sailing at speed towards the right side of the ship. Mr Bawden stated that the noise appeared to be instructions broadcast by loudspeaker. The patrol boat passed HMAS Sydney and emerged on the other side. He then noticed a sampan which appeared to be about 800 yards (about 730 metres) away. He did not see anyone on board the sampan, but then the patrol boat fired on the sampan, which exploded. He saw debris from the vessel in the water and watched as the patrol boat collected matter from the water, and he assumed this was bodies or body parts.
10. In respect of his feelings at the time, Mr Bawden emphasised that initially he feared for his own safety because he thought that HMAS Sydney was under attack, then he realised that the concern of the patrol boat was the sampan which was heading towards the ship. Mr Bawden said that he was horrified when the sampan exploded, because he imagined that the occupants had been killed. He said that he returned to the mess and sat on his own, and did not report his feelings to anyone because he feared the stigma which might occur if he did so. In oral evidence he clarified that he hid in the mess for some time, and said that he did not discuss the event with anyone because he did not want to be seen as a coward. Under cross-examination he agreed that his recollection of the event was vague, and that he has given different versions to various medical practitioners in the last eight years, but maintained that he was greatly distressed by the destruction of the sampan and the possible loss of life. He also agreed that his recollection may have been influenced by other sources and opinions about the event in the past few years.
11. Mr F O’Connor, psychologist, first saw Mr Bawden on 22 August 2006, and conducted 54 sessions with him over the next two and a half years. In a transcript of one of the sessions Mr O’Connor recorded that Mr Bawden told him:
…I looked out onto the starboard side, probably 20 degrees off the starboard bow and all I could see was something that looked like a patrol boat…they came closer and closer to the ship and I just stood there, to say I froze is probably an understatement, because I just went, I was helpless to do anything, I didn’t have a weapon again or anything like that… Anyway I let that bit go by, I didn’t let it go by but I was watching everything he did then, then he came across our bows …
…My initial reaction was that we were under attack, that this boat was somehow going to have a go at us because all we’d been told all the way up… “we’re a prime target…”
12. In a written report dated 13 December 2010 Dr G White, consultant psychiatrist, diagnosed PTSD on the basis of the sampan event which Mr Bawden told him occurred in 1967, and that the condition was characterised by
re-experiencing symptoms, hyperarousal and avoidance symptoms, which
Mr Bawden attempted to relieve by drinking heavily. Dr White took a history of
Mr Bawden seeing the unmarked patrol boat approaching …at speed and …I didn’t know if we were under attack. Mr Bawden told Dr White that after the sampan exploded:
…it felt like my whole guts had dropped out, I went numb… I can’t swear they were picking up bodies or live people…I went to my quarters, and went and hid because I was horrified and numb for an hour or so… I was piped back up to the wireless office… I seemed to [be] robotic after that, and have been ever since…
13. Dr White said that Mr Bawden reported recurrent nightmares since the event and recurring images during the day, and symptoms of increased arousal including insomnia and irritability. In oral evidence Dr White said that Mr Bawden had made no mention of feeling like a coward, and had not described being physically threatened by the presence of the patrol boat. He assessed Mr Bawden as displaying genuine distress when describing the sampan event.
14. In a written report dated 11 July 2007 Dr C. Been, consultant psychiatrist, said that he had been treating Mr Bawden since 31 January 2007. He diagnosed PTSD on the basis of the sampan event and another incident that occurred in Vietnam.
In a brief reference to the sampan event, Dr Been recorded a history of …an incident where an American Gun Boat blew up a Vietnamese boat in front of his vessel. This incident also stressed him and caused him concerns for his life.15. In reports dated 11 January 2010 and 5 April 2011 on behalf of Writeway Research Services Pty Ltd Commodore A Brecht stated that he could find no reference to the sinking of a sampan in records of the relevant voyages by HMAS Sydney or in US naval records. However a number of veterans have made similar claims that a sampan was sighted between 600 and 1200 yards (about 550 to 1100 metres) from HMAS Sydney and, based on all the material including conversations with former navy personnel, Commodore Brecht concluded that if the sampan event occurred it was most likely to have been on 1 June 1968. He stated that a high state of readiness was maintained while HMAS Sydney was anchored, with frequent movements of barges, helicopters, patrol boats and landing vessels nearby, and that the flight deck was an extremely noisy environment, so it would have been difficult for Mr Bawden to hear a loudspeaker from a patrol boat some distance away. Commodore Brecht noted that if the sampan was 800 yards (or 730 metres) from HMAS Sydney it would have been a very small object in the water, making identification of the vessel and any occupants extremely difficult to the naked eye.
16. In assessing the claimed stressor, the Tribunal takes into account that the descriptions given by Mr Bawden to medical practitioners and the Veterans’ Review Board have varied, although this is not surprising given the time that has elapsed since 1968. Mr Bawden began to talk about the event only relatively recently, and he conceded that his recollection is vague.
17. In respect of the sampan event the Tribunal accepts that Mr Bawden witnessed the destruction of a sampan by a patrol boat, and the Tribunal accepts Commodore Brecht’s conclusion that this event occurred on 1 June 1968. In respect of Mr Bawden’s assertion that he feared for his life when observing the patrol boat approaching HMAS Sydney, the Tribunal takes into account that the event occurred during Mr Bawden’s seventh voyage to Vung Tau Harbour, and that he would have been familiar with the arrangements for protecting the ship when it was at anchor, including the presence of an escort vessel and other air and seagoing vehicles, plus a state of readiness in the event of a possible attack. In this context the Tribunal accepts that Mr Bawden may have been apprehensive when he first observed the patrol boat in the vicinity of HMAS Sydney, but that any concern ceased soon afterwards when he realised that the patrol boat was engaged in dealing with the sampan, and there is no evidence of a lasting or significant fear for his safety after he acknowledged that the patrol boat was not an enemy vessel and that it posed no threat to him. Therefore the Tribunal finds that in observing the patrol boat approaching HMAS Sydney Mr Bawden did not experience, witness or was confronted with an event that involved actual or threatened death or serious injury, or threat to the physical integrity of himself.
18. In respect of the explosion of the sampan, the Tribunal takes into account that by his own evidence Mr Bawden was about 730 metres from the sampan and did not see any occupants before the explosion or bodies afterwards. Although he said that he was horrified because he imagined that any occupants would have been killed, his written and oral evidence referred to his fear that he would be labelled as a coward and the fear that stigma might occur if he mentioned his feelings. There is no reference to cowardice in any documents, and there is no basis for any suggestion that he could be labelled a coward, because he was not involved in the destruction of the sampan or its aftermath. Similarly any stigma he believed would flow from divulging his feelings suggests that he was ashamed that the incident had caused him to hide in the mess after observing the sampan, rather than a feeling of intense fear, helplessness or horror.
19. The history given by Mr Bawden to Mr O’Connor would appear to be more reliable than that given to medical practitioners or other persons because
Mr O’Connor conducted many sessions from 2006 in a supportive environment before Mr Bawden lodged his application with the respondent. In the transcript of the session made available to the Tribunal not only was Mr Bawden’s concern primarily a fear for his safety arising from the presence of the patrol boat, but in discussing his feelings there is no reference to him returning to the mess to hide, or any suggestion of significant negative feelings arising from the incident. Apparently he returned to normal duties afterwards. Dr Been made only brief reference to the effect of the sampan event on Mr Bawden as an incident which stressed him. The Tribunal finds that Mr Bawden may have felt concern about any occupants of the sampan after the explosion, but his response did not involve intense fear, helplessness, or horror.
20. In view of its findings on the sampan event, the Tribunal is reasonably satisfied that Mr Bawden was not exposed to an event or events that could be described as traumatic as is required for a diagnosis of PTSD, and the Tribunal concludes that Mr Bawden does not suffer from PTSD, so there is no need to determine whether this condition is war-caused.
21. In McKerlie v Repatriation Commission [2010] FCA 1127 Besanko J stated at [45]:
In my opinion, in addition to determining the case expressly articulated by the applicant, the Tribunal was bound to consider and determine if the applicant suffered from the symptoms of which he complained and whether those symptoms constituted a disease within the VE Act. If they did, the Tribunal was bound to undertake the process identified in Deledio…
DOES MR BAWDEN SUFFER FROM ANY OTHER PSYCHOLOGICAL CONDITION, INCLUDING ALCOHOL ABUSE OR DEPENDENCE AND DEPRESSIVE DISORDER?
22. Dr Been diagnosed alcohol abuse, while Dr White diagnosed alcohol dependence characterised by excessive alcohol intake associated with a stated history of withdrawal symptoms, drinking more than intended, unsuccessful efforts to cut down, attendances at Alcoholics Anonymous for three years, and significant social repercussions from drinking. The Tribunal accepts the description of symptoms given by Dr White and finds that Mr Bawden suffers from alcohol dependence.
23. In addition to diagnosing PTSD, Dr Been stated that Mr Bawden described symptoms of depressed mood and isolation, gaining limited pleasure and enjoyment from life, as well as insomnia, aggression and concentration difficulties. Dr Been diagnosed depression.
24. Dr White diagnosed PTSD, but in oral evidence he suggested, in the absence of a full clinical history, that an adjustment disorder with depressive symptoms might be an appropriate diagnosis.
25. The Tribunal accepts the diagnosis by Dr Been, as Mr Bawden’s treating psychiatrist with access to a more complete history, rather than the suggested alternative diagnosis by Dr White (who saw Mr Bawden once for the purpose of a medico-legal opinion) given in oral evidence. Therefore the Tribunal finds that
Mr Bawden suffers from depressive disorder.IS ALCOHOL DEPENDENCE WAR-CAUSED?
26. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
27. In the circumstances of this case, where Mr Bawden has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
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 [Statement of Principles] determined by the Authority under s 196B(2) or (11). 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 ss 196B(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 s 120(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.
28. Mr Bawden told the Tribunal that when he lived with his parents before joining the navy there was no alcohol at home, and he commenced drinking after joining the navy. He said that he was a light social drinker before operational service in Vietnam. However after his voyages to Vietnam he began to drink heavily, particularly after the sampan event, and was intoxicated regularly. After his discharge he attended Alcoholics Anonymous in 1978 and abstained from alcohol for three years, but then resumed heavy drinking while serving with the Metropolitan Fire Brigade for 13 years, and has continued ever since.
29. Under cross-examination Mr Bawden agreed that he began drinking shortly after joining the navy while training as a Junior Recruit at HMAS Leeuwin. He agreed that in July 1965 he was admitted to hospital suffering from convulsion while on board HMAS Anzac, and that according to the hospital notes he …apparently had a fit, although there was no history of fits, fainting or headaches and his drinking was noted as Grog 9/week. He …did not know why he was brought across…
Mr Bawden denied that he was drunk and said that he had slipped in the mess. He also agreed that in May 1966 he was admitted to hospital with lacerations to his hand and foot after walking into a plate glass window late at night when he was off-duty, but denied that he was drunk.30. Mr Bawden agreed that in April 1967 he was convicted in a civil court of three charges involving indecent, insulting and threatening language, including words directed to Police at Granville Police Station on 29 March 1967. He conceded that there had been an altercation in the street before the incident at the Police Station, and agreed that he would not have used the words in question if he had been sober. Mr Bawden agreed that in December 1967 he was admitted to hospital suffering from facial and wrist injuries, and conceded that he had been drinking heavily and may have been intoxicated. In the same month he was diagnosed with a foot injury arising from an incident that, according to the medical records, occurred …in an entertaining alcoholic exercise ashore jumped of[f] a terrace [and] landed on forefoot. Mr Bawden said that he could not recall the incident, but agreed that he would not have jumped off a terrace if sober.
31. In relation to other matters Mr Bawden agreed that he told the Veterans’ Review Board that after leaving HMAS Sydney in 1969 he began to consume methylated spirits and medicated wine. He also said that he had worked in a number of jobs, sometimes seven days per week, for many years despite drinking heavily, until he ceased work in 2009.
32. In his report Dr Been took a history of Mr Bawden commencing the use of alcohol on a very heavy basis during his military service. Dr White noted that
Mr Bawden drank a little on HMAS Anzac and …as much as the average sailor, and that heavy drinking commenced …after the traumatic events on HMAS Sydney.33. In relation to the first step from Deledio, after considering evidence from
Mr Bawden and the other witnesses about his alcohol dependence and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by
Mr Bawden. Therefore he satisfies the first step.34. In respect of the second step from Deledio, there is an SoP in force, being SoP Nº 1 of 2009 concerning Alcohol Dependence or Alcohol Abuse. If he does not satisfy that SoP, the Tribunal is required to consider SoP Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse, which has now been revoked but was in force at the time Mr Bawden lodged his claim (Repatriation Commission v Gorton (2001) 110 FCR 321). In SoP Nº 1 of 2009 the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are stated in paragraph 6:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
…
35. Paragraph 9 of the SoP states:
"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
36. Paragraph 5 of SoP Nº 76 of 1998 states:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse;
…
37. Paragraph 8 of the SoP states:
“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.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;
38. There is no definition of the term clinical onset in the SoPs or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398 and Repatriation Commission v Cornelius [2002] FCA 750 the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or the condition is actually found on diagnostic testing, regardless of the extent of symptoms.
39. In respect of the date of clinical onset of alcohol dependence, Dr White took a history of heavy drinking commencing … after the traumatic events on HMAS Sydney (there had been other incidents, but he said that these had not been as terrifying). Dr Been stated in his report:
Mr Bawden drinks alcohol to excess almost on a daily basis. This has been his pattern for many years, in fact he states this has been his pattern since he was in the Australian Defence Force.
40. Despite the poor recollection of events by Mr Bawden, the Tribunal takes into account the evidence from Mr Bawden, Dr Been and Dr White and the events involving hospital admissions and civil convictions raised with Mr Bawden during cross-examination, including his concession that some of the events would not have occurred if he had been sober. His history of drinking shows a pattern that commenced during initial training on HMAS Leeuwin in 1964 and became more serious when he served on HMAS Anzac in 1965, before joining HMAS Sydney. His drinking increased throughout his service and has continued ever since, apart from a three-year period of abstinence. In all the circumstances the Tribunal finds that by the time of operational service Mr Bawden already had an established pattern of heavy drinking which constituted alcohol dependence, and that clinical onset of the condition occurred in about 1965.
41. In relation to the third step from Deledio the Tribunal is not making any findings of fact. In Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372‑3 the Federal Court held that …a ‘reasonable hypothesis’ involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
42. In view of its finding, that the sampan event did not constitute a traumatic event or severe stressor that evoked a response involving intense fear, helplessness or horror that would satisfy the criteria for a diagnosis of PTSD, the material does not point to a reasonable hypothesis linking Mr Bawden’s alcohol dependence to his operational service with respect to factors 6(b) and 6(c) of SoP Nº 1 of 2009, and also factors 5(b) and 5(d) of SoP Nº 76 of 1998.
43. In respect of factor 6(a) of the SoPs, in view of the Tribunal’s conclusion about the date of clinical onset of alcohol dependence, in 1965 Mr Bawden did not suffer from a clinically significant psychiatric condition, so the material does not point to a reasonable hypothesis linking Mr Bawden’s alcohol dependence to his operational service with respect to factor 6(a) of SoP Nº 1 of 2009 or factor 5(a) of SoP Nº 76 of 1998.
44. For these reasons the hypothesis connecting alcohol dependence with
Mr Bawden’s service is not a reasonable hypothesis and does not fit the relevant SoPs, so Mr Bawden does not satisfy the third step. Therefore the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between
Mr Bawden’s alcohol dependence and his operational service during the relevant period, and there is no sufficient ground for determining that his alcohol dependence was war-caused.
IS DEPRESSIVE DISORDER WAR-CAUSED?
45. Mr Bawden described his experiences during his voyages to Vietnam that he said demonstrated a link between his depressive disorder and his operational service.
46. In relation to the first step from Deledio, after considering evidence from
Mr Bawden and Dr Been about his depressive disorder and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Bawden. Therefore he satisfies the first step.
47. In respect of the second step from Deledio, there is an SoP in force, being SoP Nº 27 of 2008 concerning Depressive Disorder. If he does not satisfy that SoP, the Tribunal is required to consider SoP N° 17 of 2007 concerning Depressive Disorder, which has now been revoked but was in force at the time Mr Bawden lodged his claim.
48. Factors 5 and 6 of SoP Nº 27 of 2008 state:
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service is:
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder;
…
(vi) experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or
(vii) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder;
…
49. Paragraph 9 of the SoP states:
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;
50. Factors 5 and 6 of SoP Nº 17 of 2007 state:
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6….
(b) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder;
…
(f) experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or
(g) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder;
51. In respect of clinical onset, Dr Been stated in 2007 that Mr Bawden’s PTSD and alcohol abuse symptoms appear to have been present for many years, although his depressive symptoms …appear to have commenced more recently. Although there is difficulty in being precise, on balance the Tribunal finds that clinical onset of depressive disorder occurred in about 2006 when Mr Bawden first consulted
Mr O’Connor.
52. In relation to the third step from Deledio the Tribunal appreciates that the events occurred a long time ago and that Mr Bawden’s recollection of relevant events is vague. In view of its finding that the sampan event did not constitute a traumatic event or severe stressor that evoked a response involving intense fear, helplessness or horror that would satisfy the criteria for a diagnosis of PTSD, the material does not point to a reasonable hypothesis linking Mr Bawden’s depressive disorder to his operational service with respect to factors 6(a)(ii) and 6 (a)(iii) of SoP Nº 27 of 2008 and factors 6(b) and 6(c) of SoP Nº 17 of 2007.
53. In respect of factor 6(a)(vi) of SoP Nº 27 of 2008 and factor 6(f) of SoP Nº 17 of 2007, Mr Bawden may have suffered from one or more category 2 stressors in the year before clinical onset of depressive disorder, but there is no material linking these with Mr Bawden’s service. In respect of factor 6(a)(vii) of SoP Nº 27 of 2008 and factor 6(g) of SoP Nº 17 of 2007, although the Tribunal has found that the date of clinical onset of depressive disorder was about 2006 and that alcohol dependence was present since 1965, the Tribunal has found that alcohol dependence was not war-caused, and there is no material linking a clinically significant psychiatric condition with Mr Bawden’s service (factor 5 of SoP Nº 27 of 2008 and SoP Nº 17 of 2007).
54. For these reasons the hypothesis connecting depressive disorder with
Mr Bawden’s service is not a reasonable hypothesis and does not fit the relevant SoPs, so Mr Bawden does not satisfy the third step. Therefore the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between
Mr Bawden’s depressive disorder and his operational service during the relevant period, and there is no sufficient ground for determining that his depressive disorder was war-caused.
DECISION
55.The Tribunal affirms the decision under review.
I certify that the fifty-five [55] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
Signed:………………………[signed]…….……………………………..
Kate Conners Associate
Dates of hearing: 18 and 19 April 2011
Date of decision: 2 May 2011
Counsel for the applicant: Ms F Ryan
Solicitor for the applicant: Williams Winter
Counsel for the respondent: Mr G Purcell
Solicitor for the respondent: Department of Veterans’ Affairs
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