Boother and Repatriation Commission
[2003] AATA 195
•28 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 195
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1309
VETERANS’ APPEALS DIVISION ) Re ELVA BOOTHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Rear Admiral A Horton AO RAN (Rtd), MemberDate28 February 2003
PlaceSydney
Decision The decision under review is affirmed. (Sgd) M D ALLEN
__________________
Presiding Member
CATCHWORDS
VETERNS’ ENTITLEMENTS - Claim PTSD led to deceased veteran's suicide - Necessity of complying with SoP for both suicide and PTSD - Rejection of claim that Tribunal can depart from criteria mandated by SoP - No evidence to support diagnostic factors in Statement of Principles.
Veterans' Entitlement Act 1986 - s6C, s120, s120A
McKenna v Repatriation Commission 86 FCR 144
Repatriation Commission v Deledio 83 FCR 82
Benjamin v Repatriation Commission 34 AAR 270
Bull v Repatriation Commission 34 AAR 326
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Gosewinckel 59 ALD 690
Re Budworth v Repatriation Commission [2000] AATA 127
Budworth v Repatriation Commission 63 ALD 422
REASONS FOR DECISION
Senior Member M D Allen
Rear Admiral A Horton AO RAN (Rtd), Member1. The Applicant is the widow of Francis Edward Boother, deceased, who died on the 14th day of August 1985 by reason of a self-administered gunshot wound.
2. On 12 October 1999 a delegate of the Respondent refused the Applicant's claim to have the death of her late husband attributed to his war service and on 12 July 2001 the Veterans' Review Board affirmed that decision. By notice lodged the 31st day of August 2001 the Applicant sought review of the response decision by this Tribunal.
3. The third application for review came on for hearing for this Tribunal on the 12th day of February 2003. At that hearing the following documents were taken in and marked as follows namely:
`
Exhibit
Description
Date
T1-T14 pp1-62
The documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
The Applicant's Statement of Facts and Contentions
undated
A2
Statement by the Applicant
6 May 2002
A3
Report of Dr Dinnen, Psychiatrist
13 February 2002
A4
Report of Mr Brendan O'Keefe, Historian
4 July 2002
A5
Copy statement by Allan Terrence Muscio
30 August 1985
A6
Copy statement by Paul Wayne Guy
25 September 1985
A7
Copy statement by Geoffrey Leonard Ewart
25 September 1985
R1
Respondent's amended Statement of Facts and Contentions
17 June 2002
R2
Deceased's record of service with Royal Navy
12 August 2002
R3
Report of WriteWay Research Service
26 March 2002
R4
Report of WriteWay Research Service
27 June 2002
R5
Report of WriteWay Research Service
25 July 2002
4. As the deceased veteran had operational service as that term is defined in section 6C of the Veterans' Entitlements Act 1986 being service in Korean waters aboard HMAS Tobruk in the period from 31 August 1951 to 23 February 1952 the standard of proof in this matter is that mandated by subsections 120(1) and (3) Veterans' Entitlement Act (VEA).
5. Subsection 120(1) VEA provides that this Tribunal shall grant the claim to have the deceased's death recognised as war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection 120(3) VEA then provides that the Tribunal shall be so satisfied if, after a consideration of all the material before it, it is satisfied that no reasonable hypothesis has been raised connecting the death of the deceased with the circumstances of his particular service.
6. Section 120A VEA states that any hypothesis raised by the material connecting the death of the deceased with service shall not be a reasonable hypothesis unless it conforms to a so called Statement of Principles ("SoP") issued by the Repatriation Medical Authority.
7. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
8. In this matter the applicable SoP is Instrument No.71 of 1996 as amended by Instrument No.177 of 1996 entitled "Suicide or attempted Suicide". Factors 5(b) and (c) of Instrument No.71 of 1996 read that the factors that must as a minimum exist before a reasonable hypothesis connecting suicide with relevant service are:
(b) suffering from depression at the time of suicide; or
(c) suffering from post traumatic stress disorder at the time of suicide.
9. In her Statement of Facts and Contentions ("SoFC") (Exhibit A1) the Applicant claimed that at the time of his death the deceased was suffering from a war-caused post traumatic stress disorder ("PTSD") or a war-caused depression.
10. Both depression and PTSD are conditions regarding which the Repatriation Medical Authority has issued Statements of Principles. As was pointed out by the Full Court of the Federal Court in McKenna v Repatriation Commission 86 FCR 144 where a sub-hypothesis exists and there is a SoP relevant to that sub-hypothesis then the factors stated in that SoP must also be met. As the Court said at p151:
"A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts."
11. McKenna's case supra therefore has the effect that for the Applicant's claim to succeed the Tribunal must be satisfied that the deceased's depression or PTSD was also war-caused which in turn means the question must be asked does the hypothesis which seeks to link PTSD or depression with service conform to the relevant SoP.
12. The manner in which the Tribunal must approach its task where there are in existence SoPs relating to a disease alleged to be suffered by a veteran was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 91 namely:
"(1) One commences with subs(3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war-service and the death, injury or disease. Identifying hypothesis is a question of fact.
(2) the second step under subs(3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the 'raised facts') and if the hypothesis can be regarded as reasonable, assuming the raised facts to be true. In determining whether the hypothesis is reasonable, the decision-maker must identify the facts set to point to it.
(3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not an issue at this point.
(4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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.."
13. Exhibit A3 is a report dated 13 February 2002 by Dr Anthony Dinnen, Psychiatrist. In that report he opines that the deceased suffered a chronic PTSD as a result of his service in Korean waters. He also referred to a report by Dr Taylor, Psychiatrist, dated 22 March 2001 (see doc T8). In that report Dr Taylor also opined that the deceased suffered from a PTSD consequent upon his operational service.
14. Dr Taylor also stated at page 4 of his report :
"Major depression is a common comorbid diagnosis with PTSD."
We infer from that remark that whereas the deceased did suffer from depression it was because of his PTSD.
15. The applicable instrument for depression is Instrument No.58 of 1998 entitled "Depressive Disorder". It requires as a factor namely factor 5(b) that the disorder has its clinical onset within two years of experiencing a "severe psychological stressor". Here the hypothesis is that the deceased experienced a severe psychological stressor during his operational service which occurred in 1951 - 1952. There is no material which satisfies us that the deceased suffered any depressive disorder within the period of two years post operational service.
16. As pointed out in Benjamin v Repatriation Commission 34 AAR 270 at 280 SoPs are not relevant to diagnosis. Therefore given the reports of Drs Taylor and Dinnen which were not challenged in these proceedings we are satisfied that the deceased did suffer a PTSD.
17. Unfortunately very little is known about the deceased's naval service aboard HMAS Tobruk. The Applicant told Dr Dinnen that the deceased "served in gunnery" but his action station aboard HMAS Tobruk is not known.
18. In her statement the Applicant said:
"My husband was at Montebello when a bomb was let off, although he didn't talk much about what he had seen as far as war experiences are concerned. He would not shut up about the places that he had been to and the customs of the people who lived there, but he never spoke about what he actually went through as a sailor. The only things he ever mentioned about his service otherwise was the fact that 'things got very hairy' when they had to go up the river in their boat they had to drop anchor and led the tide take them around. All the time they were there they were under possible enemy fire. My husband said he felt like he was a sitting duck. He told me that they had to pick up the guerillas and drop them off up the river. My husband said that these people were fearsome and had to be guarded because it was their nature to fight everyone. This was all he ever said to me about his service."
She added:
"I have always been a very heavy sleeper, but when I used to wake up in the night, or in the morning, my husband would always be covered in sweat, even if it was a cold night, and he would moan and groan in his sleep. This happened throughout our whole marriage."
19. The Applicant did state that upon his return from operational service the deceased's manner changed. Previously he had been outgoing and "happy go lucky" but on his return he did not want to go out much. She told Dr Dinnen that after Korea he was very argumentative.
20. After discharge from the RAN at the expiration of his period of service the deceased worked for the Sydney County Council. Originally he was a linesman but was promoted to a pole inspector. He worked for the Sydney County Council until his retirement.
21. The deceased's retirement was unusual in that he did not discuss it with the Applicant and to her it was unexpected. They then purchased a small hobby farm at Tullamore in Central Western NSW. Prior to the purchase of this property they had agreed to purchase a property at Mudgee but the deceased abruptly cancelled this purchase. On asking him why, the Applicant was just told "I have changed my mind, that's all".
22. Whilst at the Tullamore property the deceased's mental state began to deteriorate. He lost weight, became obsessed about the lack of money (without reason) and was depressed.
23. In a statement prepared for the coroner dated 30 August 1985 the Applicant stated :
"I still can't understand why he did it. He had said about it being hard work in his retirement. He had said he was going to sell most of the sheep and the pigs. In the last three weeks he became frightened of the animals, specially the pigs. About five or six weeks ago the bore [sic] put his tusks into his legs.
I felt like I had a little child on my hands the last three weeks, I was always running around trying to find him. He kept worrying about his losing weight and money. We had just sold our place at Spencer, Gosford. It wasn't as if he had moved and lost friends, he had more here than before. All in all we have about $70,000 in fixed deposits and savings accounts, plus we owned the place here. We had no bills to be paid."
24. Statements were also taken from a son-in-law of the deceased, a neighbour and the school headmaster who had employed the deceased as a part-time school cleaner. In Exhibit A5 Mr Muscio says that the deceased in March 1985 "seemed quite alright in himself and enjoyed himself" but he had noticed deterioration in early June. The deceased mentioned to him than that "it was the worst mistake he had ever made coming up here and that all he had done since his retirement was work and that you were supposed to enjoy yourself when you retired."
25. Mr Guy, a neighbour of the deceased in a statement dated 25 September 1985 said:
"I had been associated with the deceased, who I knew as Frank Boother for about eight months. During this time I saw him once or twice a week. I visited him at his home, 'Taralga', and he visited me at home. I advised him on several occasions in relation to his stock.
During the period 3rd August, 1985 until his dimise (sic) I noticed a severe change in his manner. He wasn't as jovial and didn't talk as much as previously. On the Tullamore Show day 10 August, I saw him at the show, he used to talk a lot before, he was very hard to make a conversation with and just wouldn't talk."
Mr Ewart, the headmaster of Tullamore Central School in a statement dated 25 September 1985 said inter alia:
"During the time he was employed I observed a change in his disposition. When first employed and until about June he was easy going and eager to have a talk, mainly about school things and his job. After June he became very serious in his manner. He complained about things and found faults with aspects of the job. He became less talkative to a noticeable degree. He maintained his efficiency in his work."
26. Having regard to the statements outlined above we find that the deterioration in the deceased's mental health was confined to a few months before his death. Apparently in early 1985 he was a relatively gregarious man, exhibiting no symptoms of any depressive disorder.
27. We also note that the Applicant married the deceased on 29 March 1952, that is after his return from active service. There is no evidence that the parties lived together before marriage so that some of the Applicant's statements to doctors regarding her husband's behaviour have to be appraised with this in mind.
28. PTSD is defined in Instrument No.3 of 1999 in terms derived from The Diagnostic and Statistical Manual Volume IV (DSMIV). Part of that definition (viz para 2(b)(B) requires that the traumatic event to which the sufferer has been exposed is persistently re-experienced in one or more of the following ways namely:
"(i)) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event was recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event".
29. In this matter there is no evidence whatsoever that the deceased re-experienced any traumatic event.
30. Dr Dinnen in his report (Exhibit A3) states that the deceased met criterion B(ii) namely recurrent distressing dreams of the event. Dr Dinnen does not state upon what basis he makes this assertion, neither is there in the history taken by him any evidence to justify such a conclusion.
31. The Applicant did give a history, referred to above, that the deceased throughout their married life had disturbed sleep, would moan and groan and sweat.
32. Unfortunately there is no evidence as to what dreams, if any, the deceased was experiencing. We note that the evidence is that the deceased was born on 19 December 1925, at Colliers Wood, London. He then joined the Royal Navy on 1 November 1943 and served at various shore establishments around the United Kingdom including Plymouth and in the Pacific Fleet during World War II.
33. Nothing else is known regarding this part of the deceased's life except that whilst in the Royal Navy he suffered concussion and a broken wrist (see T3). What is apparent is that the deceased seems to have been in London at the time of the German air raids in 1940 commonly referred to as "the blitz". We do not know to what events he may have been exposed to whilst in the Royal Navy eg. Plymouth as a Royal Navy depot was heavily bombed during World War II. In the absence of any other material it is speculative to suggest that any moaning and groaning during his sleep by the deceased was attributable to active service in Korea.
34. In Bull v Repatriation Commission 34 AAR 326 at 331 the Court referred to the well known passage in East v Repatriation Commission 16 FCR 517 at 532 namely:
"A reasonable hypothesis requires more then a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probability."
And then added:
"It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if a hypothesis was not obviously fanciful or not impossible, or not incredible or not tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis."
35. Therefore in this matter we find that as there is no material before us which in any way points to the deceased complying with the symptoms described in paragraph 2(b)(B)(ii) of Instrument No.3 of 1999 so that the hypothesis raised does not conform to the SoP and is thus not a reasonable hypothesis.
36. As we have already stated as there is no material to suggest that the Applicant had a clinical onset of a depressive disorder within the period of two years after ceasing operational service, it can not be said that any depressive disorder suffered by the deceased conformed with the applicable SoP.
37. Although the Applicant submitted that this matter could be regarded on a simple reasonable hypothesis basis without recourse to any SoP on the basis that the deceased had suffered from what was termed a "Non SoP PTSD" we reject that submission. In a passage approved by the Full Court in Lees v Repatriation Commission [2002] FCAFC 398, Weinberg J in Repatriation Commission v Gosewinckel 59 ALD 690 at 704-5 stated:
"The Tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Part XIA of the VEA were introduced in order to take the determination of 'purely medical...issues' out of the hands of bodies such as the Tribunal: explanatory memorandum to Veterans' Affairs (1994-95 budget measures) legislation amendment 1994 at p3. Evidence which contradicts an SoP, which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable: see Deledio v Repatriation Commission. A hypothesis that fails to fit within the template would be deemed not to be 'reasonable' and the claim will fail.
The hypothesis which the Tribunal found to be reasonable, namely, that the veteran's experienced the clinical onset of generalised anxiety disorder within two years of experiencing a stressful event (ie within two years of the conclusion of the war) was not upheld by the relevant SoP. The Tribunal could not therefore have found that the hypothesis was reasonable, and was bound, on the material before it, to find that the veteran's generalised anxiety disorder was not war-caused."
This passage makes it clear that there cannot be a "non SoP PTSD".
38. Even if we are wrong regarding the hypothesis raised by the Applicant conforming with the SoP, we are satisfied beyond reasonable doubt that the assumed facts upon which it is based have been negatived beyond reasonable doubt.
39. As was pointed out during argument a sailor with the rank of able seaman such as deceased would not necessarily be aware of where his ship was at anyone particular time. Thus in this matter we are prepared to accept that the deceased may have believed that the vessel had entered a river whereas the various historians reports and in particular the reports of proceedings for HMAS Tobruk make it clear that this never happened. We are also satisfied beyond reasonable doubt that the vessel never anchored in any river so as to be vulnerable to enemy gunfire.
40. There is no evidence that using an objective standard (see Re Budworth and Repatriation Commission [2002] AATA 127) the deceased was ever exposed to a traumatic event as that term is explained in paragraph 2(b)(A)(i) of Instrument No. 3 of 1999.
41. Likewise the only evidence regarding the deceased's reaction to events is that he said words to the effect that "it got a bit hairy." We accept that this may have been a rather laconic way of expressing himself but it does not point to the deceased having had a response involving intense fear, helplessness or horror (Tribunal’s emphasis). See Budworth v Repatriation Commission 63 ALD 422 at 441.
42. Similarly there is no evidence apart from the events nominated by the Applicant namely the carrying of guerillas and the vessel taking guerillas up river and anchoring whilst waiting for the tide to turn the vessel around, that would constitute the experiencing of a severe stressor as that term is defined in Instrument No. 54 of 1999. As stated we are satisfied beyond reasonable doubt the vessel never entered any river much less anchored in a war.
43. There is no evidence that the deceased witnessed casualties nor any evidence that he was engaged with the enemy to a greater extend than being the member of the crew of a vessel engaged in onshore bombardment. This it seems took place from such a distance from the shore he would have been unable to see the results even if his action station on the ship permitted him to observe. Given the historical material before us we are satisfied beyond reasonable doubt that the deceased was never exposed to any threat of serious injury or death.
44. The nett result is that we are satisfied that the hypothesis contended for by the Applicant does not conform with the applicable SoP and that further we are satisfied beyond reasonable doubt that facts upon which the said hypothesis were said to be based have been negatived beyond reasonable doubt and that other facts have also been raised which again satisfy us beyond reasonable doubt that the hypothesis cannot be regarded as a reasonable one. The decision under review is therefore affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Rear Admiral A Horton AO RAN (Rtd), Member.
Signed: .......................................................................................
AssociateDate of Hearing 12 February 2003
Date of Decision 28 February 2003
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Dibbs Barker Gosling
Advocate for the Respondent Mr J Marsh, Department of Veterans’ Affairs
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