Bernard Hansell and Repatriation Commission

Case [2015] AATA 377

[2015] AATA 377

Division VETERANS' APPEALS DIVISION

File Number

2014/1557

Re

Bernard Hansell

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Dr Roderick McRae, Member 
Date 29 May 2015
Place Melbourne

The Tribunal affirms the decision under review.

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

VETERANS’ AFFAIRS - veteran’s entitlements - amended Statement of Principles - posttraumatic stress disorder (PTSD) - new Statement of Principles - decision under review affirmed. 

Legislation

Veterans’ Entitlement Act 1986 ss 20(1), 120, 120A, 157, 177. 

Administrative Appeals Tribunal Act1975 s 37.

Cases

Harris v Repatriation Commission (2000) 62 ALD 174

Repatriation Commission v Deledio (1998)  49 ALD 193

Repatriation Commission v Gorton (2001) 65 ALD 609

Repatriation Commission v Gosewinkel (1999) 59 ALD 690

Repatriation Commission v Hancock (2003) FCA 711

Repatriation Commission v Milenz (2006) 93 ALD 107

Vietnam Veterans’ Association of Australia NSW Branch Inc v Cohen (1996) 34 ALD 205 Wallis and Repatriation Commission, Re (2000) 62 ALD 502

Woodward v Repatriation Commission 75 ALD 420

Secondary Materials

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Ed, 2000) Text Revision

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th Ed, 2013) 

Jeffrey Grey, Up top: the Royal Australian Navy in Southeast Asian Conflicts, 1955–1972, The Official History of Australia's Involvement in Southeast Asian Conflicts 1948–1975, vol. 7 (1998), pp 117 - 124

REASONS FOR DECISION

Roderick McRae, Member

29 May 2015

  1. Mr Bernard Hansell, the Applicant, is a 69 year old Vietnam veteran.  He enlisted in the Royal Australian Navy (RAN) on 14 January 1966 at 20 years of age. He had two somewhat paired tours of operational service in and around South Vietnamese waters, including at and about Vung Tau and Vung Tau Bay, for a total of four episodes of operational service.  The first paired tour was from 22 April 1966 to 16 May 1966 and from 25 May 1966 to 11 June 1966 on board HMAS Sydney, and the second was on board MV Jeparit from 14 March 1969 to 19 April 1969 and from 24 April 1969 to 29 May 1969.  The merchant vessel, MV Jeparit, was commissioned as HMAS Jeparit for a period of time due to local Sydney political/industrial issues associated with a Sydney dockyard strike related to the Vietnam War. 

  2. The Applicant’s total national service was from 14 January 1966 until 18 May 1972.  He requested his early discharge due to his wife’s pregnancy-related depression, at which time he was assessed as medically fit some six and a half years into his nine year commitment.  He has subsequently been diagnosed with, and had minor surgical procedures to manage, Dercum’s disease.  His accepted disabilities are bilateral sensorineural hearing loss and bilateral tinnitus both effective from 29 December 2004 and tinea of the skin effective from 20 December 2008.  This results in a level of incapacity assessment of 40 per cent from 20 December 2008, entitling him to a disability pension of 40 per cent of the general rate.  Disabilities that…

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AGLC
Bernard Hansell and Repatriation Commission [2015] AATA 377
Case
[2015] AATA 377
Decision Date

CaseChat Overview and Summary

Bernard Hansell has appealed a decision of the Repatriation Commission, which rejected his claim for psychiatric treatment related to his service in the Royal Australian Navy. The case was heard by the Administrative Appeals Tribunal (AAT) in Australia. The dispute centres on whether the Applicant's Post Traumatic Stress Disorder (PTSD) is attributable to his service in the Navy, specifically during his deployment to South Vietnamese waters in the late 1960s.

The primary legal issue before the AAT was to determine whether the Applicant's PTSD was caused by his war service, which would entitle him to certain benefits under the Repatriation Health Care Program. This involved examining the evidence presented by the Applicant, including witness statements and medical reports, and assessing their reliability and relevance to the claim. The Tribunal had to decide whether the events described by the Applicant during his naval service were sufficiently traumatic to cause the onset of PTSD.

In reaching its decision, the AAT considered the medical evidence provided by Dr Collier, Dr Seabridge, and Dr Walton. While the Applicant argued that his PTSD was a direct result of his wartime experiences, the Tribunal found that the medical reports did not conclusively link his condition to his service. Dr Seabridge noted that the Applicant's drinking pattern predated his service and was not a result of any service-related stressor. Furthermore, Dr Walton's report indicated that the Applicant had difficulty pinpointing specific incidents that could be directly linked to his PTSD. The Tribunal concluded that the Applicant's condition was not war-caused and upheld the original decision of the Repatriation Commission.

The AAT's decision was based on the lack of conclusive evidence linking the Applicant's PTSD to his military service. The Tribunal found that the Applicant's history of opportunistic binge drinking, which began before his deployment, and the absence of a direct correlation between his wartime experiences and the onset of his condition, supported the Repatriation Commission's decision to reject the claim. The Tribunal affirmed the decision made by the VRB on 24 February 2014, rejecting the Applicant's claim for benefits related to his PTSD.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant was represented by Ms F Spencer. The Respondent was represented by Mr G Purcell, a Repatriation Commission advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and received into evidence a number of other exhibits. BACKGROUND As a matter of happenstance, this appeal hearing commenced on the two days immediately prior to the national commemoration of the centenary of the Australian and New Zealand Army Corps’ first landing at Gallipoli, Turkey. That military campaign was significant for the consolidation of the concepts of Australian “mateship”, but also for concepts of personal, life-threatening danger, hardship and loss and exposure to actual or threatened death through directly experiencing the traumatic events. The lead up to the commemoration of the significant national anniversary included a wide public media expose of experiences of ordinary soldiers and officers involved in enemy combat to the worst kind of appalling workplace conditions and privations over many months, witnessing (perhaps new) friends or the equivalent of workplace acquaintances suffering immediate or slow deaths from profound, horrific and substantial injuries, being mown down by machine guns or mortars, or being maimed by traumatic injury. Any reasonable person could clearly comprehend what the infantrymen there could expect to see or have seen, or worse come to expect they might experience themselves, over a period of months, if they were there. Any reasonable person could appreciate what was euphemistically referred to as “traumatic neurosis”, “battle fatigue”, or “shell shock” and is now labelled PTSD. The Applicant is a married man from Kinglake, Victoria. He lives with his invalided wife who has a depressive disorder and non-Alzheimer’s disease cognitive impairment, and for whom he is now a carer. They have been married since early 1969 and have two independent adult children, a son and a daughter. He was born in London, the third of three children. He was separated from his family from two to four years of age due to and for treatment of pulmonary tuberculosis in the late 1940s in a hospital and a convalescent home. He ceased secondary education at 15 years of age, having lived in the scholastic shadow of an older brother who was more academically gifted, and having not enjoyed his home time. He worked in non-skilled employment as a fitter of floor coverings, and then studied at an art school. He migrated to Australia when he was 18 years old. WITNESS STATEMENTS The Applicant stated that after his arrival in Australia he held a bus conductor position in Sydney for approximately six months. He then worked as a grill chef in Surfers Paradise for approximately 18 months until his enlistment in the RAN in January 1966 when he was 20 years old. He had the pre-determined prime aim of becoming a naval Clearance Diver prior to enlisting, having earlier ascertained that his past pulmonary history would not preclude his ability to undertake his service as a Clearance Diver. He commenced with three months recruit training at HMAS Cerberus, which he successfully completed. In March 1966, he was assessed by a Clearance Diver Selection Board, as well as by a CW Board for consideration for promotion to higher ranking. This latter opportunity was cancelled following a period of being absent without authorisation from HMAS Sydney. After his original posting to HMAS Sydney up to July 1966, he was classified as Ordinary Seaman (Radar Plotter) (he denied being trained per se as a Radar Plotter), and undertook two voyages to South Vietnamese waters.

Evidence

Evidence Before The Court

Dr Collier could not pinpoint a time of onset of PTSD to 1969, but thought it was likely to be not long after if it was after [1969]. He agreed it was inherently the case that he could not say objectively that the incidents upon which the Applicant relied were life-threatening. He agreed it was always dangerous to assume all Veterans are the same, but noted it is common for a long time to pass before Veterans mention it. He agreed that in making any psychiatric diagnosis, the more known facts, the better. He agreed that it is expected to see patients in bandages in a hospital in a war zone. OTHER EVIDENCE Dr C Seabridge, consultant psychiatrist, provided a report dated 23 May 2005 following an assessment undertaken on 18 May 2005 related to a claim for hypertension. He reported the Applicant stated that [joining the Navy] was the start of all my troubles. He noted the Applicant’s reference to having joined the Navy expressly to become a Clearance Diver. This was completely removed as an option for the Applicant only 1 week before he completed recruit training, following which had no other interest in pursuing a Naval career, and insisted that he be discharged. He could not do so, as [h]e had signed on for 9 years… He was given the job of Radar Plotter, which he hated, and said he was so angry and so unhappy that he was unable to do the study for his VCE exam. He was so discontented that he decided to force his own discharge from the Navy, with acts of criminal or unacceptable behaviour, and he commenced by going AWOL. The Applicant chose to be a Survey Recorder, which permitted him to spend long periods of time in relative isolation on island outposts, and he spent some 6 months on an island near the Montebello’s [sic]. Dr Seabridge noted the Applicant’s drinking pattern as opportunistic binge drinking which continued through most of his naval career. His drinking pattern … nor did it arise as a consequence of a service-related severe stressor, and in fact he acknowledges that the origins of his heavy drinking began during his recruit training, before the frustration of his failed career choice. He concluded that at the time of his examination there was no evidence of an anxiety or a depressive disorder. There was no mention of any potentially life-threatening stresses or reactions to them at around 2005. Dr L Walton, consultant psychiatrist, provided a report dated 23 September 2014 (exhibit R11) following an examination on 4 September 2014, in the context of obtaining a psychiatric assessment related to this appeal. He noted that the Applicant had difficulty in precisely identifying the timing of incidents related to which of the two MV Jeparit voyages. He noted a history of apprehension associated with the darkened ship as they approached Vietnam on HMAS Sydney. The Applicant had reported that limpet mines were found attached to the ship which rendered him anxious. Around two days later while on deck in harbour a Cobra gunship performed a simulated attack on the vessel. [The Applicant] stated ‘It came out of the sun with no warning. It was very frightening. I thought I was going to die’.

Decision

Reasons for decision

The Tribunal is satisfied beyond reasonable doubt that any psychiatric condition the Applicant may have is not war-caused. DECISION Accordingly, the decision to reject the claim for PTSD being war-caused was the correct decision. The Tribunal affirms the decision of the VRB made on 24 February 2014.

Ratio Decidendi

Legal Principle Established

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