Bradley and Repatriation Commission (Veterans' entitlements)

Bradley and Repatriation Commission (Veterans' entitlements) [2018] AATA 3660 (28 September 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/6040
Re:Peter Bradley
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:28 September 2018
Place:Perth

The Tribunal:
1.sets aside the Reviewable Decision dated 26 July 2016; and
2.makes a decision in substitution for the decision so set aside that the Applicant suffers from posttraumatic stress disorder and alcohol use disorder which are
war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

................[sgd]........................................................
Senior Member Dr M Evans
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – whether reasonable hypothesis has been raised – whether posttraumatic stress disorder war-caused – alcohol use disorder – whether Applicant meets the Statement of Principles – decision set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25(1)
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9, s 13(1), s 115A, s 120,
s 120A(3), s 175, s 196B
CASES
Greenough and Repatriation Commission [2002] AATA 774
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (superseded)
Statement of Principles concerning Alcohol Use Disorder No. 48 of 2017
Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008 (superseded)
Statement of Principles concerning Posttraumatic Stress Disorder No. 19 of 2014 (superseded)
Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014
REASONS FOR DECISION
Senior Member Dr M Evans
28 September 2018
BACKGROUND TO THE APPLICATION

The Applicant is 69 years old. He enlisted in the Royal Australian Navy (RAN) on 8 January 1964 when he was 16 years of age, and served in the RAN until his discharge on 7 January 1976 (Exhibit A2, page 1).
Whilst in the RAN the Applicant was trained as a manual electrician (Exhibit A2, para [9]).
The Applicant rendered operational service in South Vietnam while serving on the HMAS Sydney and the HMAS Duchess during the following periods:
(a)8 April 1967 to 22 April 1967;
(b)28 April 1967 to 12 May 1967;
(c)19 May 1967 to 14 April 1967;
(d)20 December 1967 to 3 January 1968;
(e)17 January 1968 to 16 February 1968;
(f)27 March 1968 to 26 April 1968;
(g)3 April 1971 to 8 April 1971; and
(h)17 May 1971 to 1 June 1971 (Exhibit A1, para [5]; Exhibit A2, para [5]; Exhibit R1, T76, page 378).
The Applicant also completed eligible service (Defence Service) from 7 December 1972 until 7 January 1976 (Exhibit A1, para [6]; Exhibit A2, para [4]; T76, page 378).
The Applicant lodged a claim for a disability pension on 1 February 2006 (Exhibit R1, T17, page 45). On 9 May 2006, a delegate of the Repatriation Commission advised the Applicant that he would be granted a disability pension at 50% of the general rate, with effect from 1 November 2005 for his claims of “bilateral sensorineural hearing loss, osteoarthrosis affecting both knees, osteoarthrosis affecting both ankles and bilateral tinnitus” (Exhibit R2, para [7]; T42, page 42).
The delegate of the Repatriation Commission decided that the following conditions were not related to the Applicant’s service, “benign paroxysmal positional vertigo, hypertension, osteoarthrosis of the left hand, tinea pedis, cervical spondylosis and osteoarthrosis of the right hand” (T42, page 42). The delegate of the Repatriation Commission further found “that no medical condition is present to answer your claim for ‘Joint Pain – Lower Back’” and so the Applicant was also unsuccessful in that part of his claim (Exhibit R2, para [7]; T42, page 42).
On 5 November 2007, the Applicant lodged a claim for a disability pension for posttraumatic stress disorder (PTSD) (T21, page 74). His claim was refused by the Repatriation Commission on 20 November 2007 on the basis that the PTSD was not related to service (T22, pages 96-99). The Applicant sought review of this decision, and on 11 November 2008, the Veterans’ Review Board affirmed the decision (T29, page 201).
The Applicant sought further review of the decision of the Repatriation Commission of 20 November 2007 in the Veterans’ Appeals Division of the Administrative Appeals Tribunal (the Tribunal) and on 5 February 2010, the Tribunal affirmed the decision (T33, page 221).
On 12 July 2011, the Applicant lodged a claim seeking an increase in his disability pension for major depression (T44, page 249). This claim was refused by the Repatriation Commission on 1 August 2011 on the basis that “no medical condition is present to answer your claim for ‘major depression’” (T48, page 278).
On 3 December 2012, the Applicant made a further claim for an increase in his disability pension in relation to the conditions of: PTSD, Meniere’s Disease, pleural plaque, cervical spondylosis, tinea of the skin, osteoarthritis of both hands, sleep apnoea, hypertension, lower back pain, benign paroxysmal positional vertigo, major depression, alcohol dependence and “the after effect of being electrocuted” (T55, page 288-301).
On 20 March 2014, a delegate of the Repatriation Commission made a decision to accept the Applicant’s claim “for pleural plaques, osteoarthrosis affecting both hands, lumbar spondylosis and depressive disorder” and increased the Applicant’s disability pension to 100% of the general rate, with effect from 3 September 2012 (T76, page 355). The delegate, however, decided that “post-traumatic stress disorder, Meniere’s disease, cervical spondylosis, tinea, sleep apnoea, hypertension, benign paroxysmal positional vertigo and alcohol abuse are not related to service” (T76, page 375).
On 1 April 2014, the Applicant requested a review of the decision of 20 March 2014 (T77, page 391), but later withdrew his request for review in relation to the refusal of his claim for Meniere’s Disease, tinea, sleep apnoea, benign paroxysmal positional vertigo and hypertension (T81, page 432, para [3]). On 26 July 2016, the Veterans’ Review Board affirmed the decision under review in relation to PTSD, cervical spondylosis and alcohol abuse (T81, page 431).
On 6 November 2016, the Applicant sought review in this Tribunal of the decision of the Veterans’ Review Board of 26 July 2016 (T1) (the Reviewable Decision).
The Applicant’s Statement of Facts, Issues and Contentions states that “[t]he Applicant accepts that on the current evidence available his claim for cervical spondylosis cannot succeed” (Exhibit A1, para [38]). Consequently, the only conditions which the Tribunal must consider are posttraumatic stress disorder and alcohol use disorder.
ISSUE
The issues which require determination by the Tribunal are:
(a)whether the Applicant suffers from PTSD, and alcohol use disorder; and
(b)if so, whether these conditions are war-caused. This requires the Tribunal to assess:
(i)whether a reasonable hypothesis has been raised by the Applicant connecting his war service with the diseases; and
(ii)if so, whether the Tribunal is satisfied beyond a reasonable doubt that there is no sufficient ground for making that finding.
JURISDICTION
Section 25(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that the jurisdiction of the Tribunal is given to it by other “enactments” which grant the Tribunal jurisdiction to review certain decisions made under those enactments:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 175 of the Veterans’ Entitlement Act 1986 (Cth) (the VEA) gives the Tribunal jurisdiction to review a decision of the Veterans’ Review Board:
(1)If:
(a)a decision of the Commission has been reviewed by the Board upon an application made under section 135; and
(b)either:
(i) the Board affirms or varies the decision; or
(ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;
applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.
(1AA)For the purposes of subsection (1), the decision made by the Board is taken to be:
(a)if the Board affirms a decision-that decision as affirmed; or
(b)if the Board varies a decision-that decision as varied; or
(c)if the Board sets aside a decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies-the decision made by the Board in substitution for the decision so set aside.
Consequently, the Tribunal has jurisdiction to review the Reviewable Decision of the Veterans’ Review Board dated 26 July 2016.
MATERIAL BEFORE THE TRIBUNAL
The application was heard in the Tribunal on 16 and 17 July 2018. The Applicant was represented by Mr Robert Graydon of Robert Graydon Legal. The Respondent was represented by Ms Sarah Oliver of Francis Burt Chambers who was instructed by the Australian Government Solicitor (AGS).
The Tribunal heard evidence from the following witnesses at the hearing:
(a)The Applicant;
(b)Dr James Fellows-Smith, the Applicant’s treating Psychiatrist, who was called by the Applicant and gave evidence by telephone.
(c)Dr Gemma Edwards-Smith, Consultant Psychiatrist, who was called by the Respondent and gave evidence in person.
The following material was put into evidence at the hearing:
(a)the Applicant’s Statement of Facts, Issues and Contentions dated 24 November 2017 (Exhibit A1);
(b)the Witness Statement of the Applicant dated 19 November 2017 (Exhibit A2);
(c)a Medical Report of Dr Fellows-Smith dated 24 May 2017 (Exhibit A3);
(d)the Respondent’s s 37 documents, including documents T1 to T8 (Exhibit R1);
(e)the Respondent’s Statement of Facts, Issues and Contentions dated 14 February 2018 (Exhibit R2);
(f)a Medical Report of Dr Edwards-Smith dated 25 May 2017 (Exhibit R3);
(g)AGS Briefing Letter to Dr Edwards-Smith dated 16 May 2017 with Schedule of Documents (Schedules A & B) (Exhibit R4);
(h)Email from AGS dated 26 February 2018 regarding the preparation of a supplementary medical report from Dr Edwards-Smith (Exhibit R5);
(i)Supplementary Medical Report from Dr Edwards-Smith dated 4 April 2018 (Exhibit R6);
(j)Supplementary Medical Report from Dr Edwards-Smith dated 20 April 2018 (Exhibit R7);
(k)Hand-drawn Plan titled “main deck (deck 4)”, and close-up photocopy of mid-section of this hand-drawn plan, together with two photographs of rooms inside the vessel. These documents were emailed to the Tribunal by AGS on 10 July 2018 (Exhibit R8); and
(l)the Respondent’s Statement of Issues (s 37 statement) dated 9 February 2017 (Exhibit R9)
The Tribunal has considered all of the material before it, as well as the oral submissions of the parties, the evidence of the Applicant and the expert medical evidence. The Tribunal is satisfied that the parties have had an adequate opportunity to present their case and to be heard by the Tribunal.
LEGISLATION
Section 13(1) of the VEA sets out when a veteran will be eligible for a pension:
(1)Where:
…
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)in the case of the incapacity of the veteran-pension by way of compensation to the veteran;
in accordance with this Act.
Section 5D(1) of the VEA contains the following relevant definitions:
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury.
Posttraumatic stress disorder and alcohol use disorder are “mental ailments” and would therefore meet the definition of a “disease” in s 5D(1) of the VEA.
With respect to whether an injury or disease is “war-caused”, s 9 of the VEA provides:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
…
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
…
but not otherwise.
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident-that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease-the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
Section 115A of the VEA defines a “veteran”:
veteran means:
(a)a person:
(i) who is, because of section 7, taken to have rendered eligible war service;…
With respect to “eligible war service”, s 7(1) of the VEA provides:
(1)Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;..
It was not in contention between the parties that the Applicant is a veteran who has rendered operational service in an operational area, as per s 5B and Schedule 2 of the VEA, and therefore, eligible war service.
The standard of proof required is provided for in s 120 of the VEA:
(1)     Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:     This subsection is affected by section 120A
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
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.
Note:     This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:     This subsection is affected by section 120B.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; 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) of the VEA must be read in conjunction with s 120A(3) of the VEA, which provides:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of 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) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
The Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) identified a four step process which the Tribunal must take in applying
s 120(1) and s 120(3) of the VEA, as affected by s 120A, in particular
s 120A(3). This process will be discussed later in these reasons for decision in the consideration section.
Statements of Principles are determined by the Repatriation Medical Authority (s 196B(1) VEA). Specifically, s 196B(2) of the VEA provides:
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces; or
(caa)British nuclear test defence service rendered by members of the Forces; or
(ca)warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Posttraumatic stress disorder

With respect to the Applicant’s claim for PTSD, the current Statement of Principles is the Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014 (SOP No. 82 of 2014) which took effect from 22 September 2014.
The Statement of Principles that was, however, in effect at the date of the determination on 20 March 2014 was the Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008 (SOP No. 5 of 2008) which took effect from 9 January 2008. SOP No. 5 of 2008 was amended by Statement of Principles concerning Posttraumatic Stress Disorder No. 19 of 2014 (SOP No. 19 of 2014), which took effect from 19 December 2013.
Specifically, the relevant factors relied upon by the Applicant are:
·Clause 6(a) – “experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;” – expressed in the same terms in clause 6(a) of both SOP No. 82 of 2014 and SOP No. 5 of 2008 – and/or
·Clause 6(ba) – “having a perception of threat and/or harm to the integrity of the self as a consequence of being in what:
(i) the individual concerned; and
(ii) a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of posttraumatic stress disorder…”; – inserted into clause 6 by SOP No. 19 of 2014.
The Applicant seeks to rely upon SOP No 5 of 2008, as amended by SOP No. 19 of 2014 (Exhibit A1, page 7; transcript, page 9), because it is favourable to the Applicant.
In Greenough and Repatriation Commission [2002] AATA 774 (Greenough), Deputy President Forgie stated, at [59]:
…the order in which the Tribunal is to approach the SoPs is:
first consider the claim by reference to the SoP in force at the date of the Tribunal’s decision;
if the consideration is favourable to the applicant, that is an end of the matter; and
if the consideration is not favourable to the applicant, consider the claim by reference to the SoP in force at the date of the Commission’s determination.
Applying Greenough, the Tribunal agrees that SOP No. 82 of 2014 is not as favourable to the Applicant because the category 1A stressor requires “[e]xposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways: (i) directly experiencing the traumatic event(s)” (clause 3(b)A.(i) of SOP No. 82 of 2014). SOP No. 82 of 2014 is not as favourable to the Applicant as the Applicant received an electric shock in his sleep. On the other hand, paragraph (ba) of SOP No. 5 of 2008, as inserted by SOP No. 19 of 2014, refers to “having a perception of threat and/or harm…” which is more favourable with respect to the Applicant’s submissions that he received an electric shock in his sleep. The details of this electrocution incident, and the perception of threat and/or harm are discussed in further detail below.
Alcohol use disorder
With respect to the Applicant’s claim for alcohol use disorder, the current Statement of Principles is the Statement of Principles concerning Alcohol Use Disorder No. 48 of 2017 (SOP No. 48 of 2017) which commenced on 18 September 2017. The Statement of Principles that was, however, in effect at the date of the determination of the delegate of the Repatriation Commission on 20 March 2014 was the Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (SOP No. 1 of 2009) (Exhibit R1, T76, page 375).
The Applicant’s Statement of Facts, Issues and Contentions refers to both SOPs which are worded slightly differently, and yet are substantially the same. Clause 6 of SOP No. 1 of 2009 provides:
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol use disorder or death from alcohol use disorder with the circumstances of a person’s relevant service is:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder;… (Original emphasis.)
The Tribunal observes that PTSD would be a “psychiatric condition” for the purpose of the factor in clause 6(a) of SOP No. 1 of 2009.
Clause 9 of SOP No. 48 of 2017 provides:
At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol use disorder or death from alcohol use disorder with the circumstances of a person’s relevant service:
(1)having a clinically significant disorder of mental health as specified at the time of the clinical onset of alcohol use disorder;
Note: clinically significant disorder of mental health as specified is defined in the Schedule 1 – Dictionary. (Original emphasis.)
The schedule 1 – Dictionary of SOP No. 48 of 2017 states:
clinically significant disorder of mental health as specified means one of the following conditions, which is of sufficient severity to warrant ongoing management:
…
(r)posttraumatic stress disorder;
…
Note 1: ‘Management’ of the condition may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner.
Note 2: To ‘warrant ongoing management’ does not require that any actual management was received or given for the condition. (Original emphasis.)
EVIDENCE OF THE APPLICANT
The Applicant’s claim for PTSD is based on an electrocution incident which occurred during his operational service. In the Applicant’s witness statement (Exhibit A2, pages 6-10), which the Applicant confirmed to be true and correct in his evidence at the Tribunal hearing, the Applicant made the following statement about the electrocution incident:
31. While on HMAS Sydney in December 1967 I was not getting on well with the Chief Regulating Electrician (CRE).
32. I recall that it was during this tour because it was close to Christmas and we had sailed through Fremantle to pick up three rafts in South Australia.
33. I also recall that the air conditioning had just been turned on because we were two days out from Vietnam.
34. I often had problems with superior officers, but I had a history of conflict with the CRE and he would single me out and pick on me.
35. At the time I was in my 4th year of service and I was the Number 1 Duty Electrician.
36. The CRE directed me to sleep in the Switchboard Compartment behind the main switchboard.
37. I had never had (sic) to sleep there before, and did not have to afterwards.
38. I think that the rationale was so I could be easily found if required but the reason was never explained.
39. I was issued with a stretcher and told to take my pillow and sleeping gear.
40. The main switchboard controls all the ship’s electrical heavy machinery.
41. My stretcher was positioned only about 600mm away from the live buzz bars on the switchboard.
42. A 240 volt DC current flows through the buzz bars.
43. The buzz bars are a solid strip of copper that are connected to the on/off button.
44. While I was asleep I was awoken by being thrown out of bed.
45. I hit the floor and was confused. I did not know immediately what had happened.
46. I thought ‘What the bloody hell was that?’ or similar.
47. I looked at my hand and saw that two blisters were forming on it.
48. I realised that I had touched the buzz bars in my sleep and had received an electrical shock from the switchboard.
49. I also realised that I had soiled my clothes.
50. I cleaned myself up using paper towels.
51. I realised that I could easily have been killed.
52. I felt afraid and as though I had no control over what could have happened.
53. I was too afraid to go back to sleep so I lay awake for the rest of the night until I could report to sick bay in the morning.
54. I don’t know how long I had to wait but I continued to worry through the night.
55. I reported to sick bay after it opened at 8.00am that morning and received treatment for my burns.
56. I still have scars from the burns.
57. I explained to the SBA what had happened and that I did not want to cause conflict.
58. We were only two days out of Vietnam and I did not want to create any conflict.
59. I was having enough trouble with the CRE and I did not report what had happened to him.
60. I did not want to cause any waves.
61. I did speak about it with other electricians and there was concern about what had happened.
62. It was quite soon after the incident that I started having anger problems.
63. My drinking increased and I have had problems controlling my drinking ever since.
During cross-examination, the Applicant provided further details about the electrocution incident (transcript, page 48-49):
MS OLIVER:Now, in relation to the electrocution incident, if I understand correctly, you say you were sleeping?
APPLICANT:   Yes.
MS OLIVER:   On the stretcher?
APPLICANT:   Yes.
MS OLIVER:   Near the switchboard?
APPLICANT:   Yes.
MS OLIVER:   You were thrown from the bed?
APPLICANT:   I found myself laying up against the bulk head on the deck, with the bed sticking up behind me.
MS OLIVER:   So, you have woken up on the ground?
APPLICANT:   Well, yes.
MS OLIVER:   That’s your -?
APPLICANT:   Yes.
MS OLIVER:   And at that time, you are dazed and confused. Is that right?
APPLICANT:   I don’t know about dazed. I woke up with, what the hell was going on. That was my first –
MS OLIVER:   Thought?
APPLICANT:   Impression and then, the hands started stinging away straight away.
MS OLIVER:   And that’s when you noticed that you had soiled yourself. Is that right?
APPLICANT:   Yes, about that time, yes. Well – yes, I suppose about then, yes and I had to start crawling out of there to get away from the bunk and the back of the board.
…
MS OLIVER:   You say your fingers were tingling. Is that – when did you notice the blisters that you say were – ?
APPLICANT:   That was virtually straight away that I could feel the stinging on the fingers.
In summary, the Applicant’s evidence was that he was violently thrown from the stretcher bed when his fingers touched the electricity, he received a strong electric shock, he experienced double incontinence (urinary incontinence and faecal incontinence), and his fingers were “straight away…stinging”. The Applicant also gave evidence that following this electrocution incident, he was “hyper-vigilant about the possibility of being electrocuted” and requested a transfer of duties because he was afraid to work with a high voltage (Exhibit A2, paras [67]-[70]). He was transferred into low-voltage duties and subsequently avoided doing any work that involved live current (Exhibit A2, pars [71]-[72]). The Applicant also left the electrical industry after he was discharged from the RAN and worked as a barman, however he was not well-suited to the job due to getting into conflicts with people because of having an aggressive attitude (Exhibit A2, paras [78]-[79]). He commenced working as an electrician again, however gained a reputation for being overcautious and would not do any work involving live current (Exhibit A2, paras [80]-[81]). He was able to obtain work wiring new houses which allowed him to install the wiring without having anything to do with live current (Exhibit A2, para [82]-[86]). In his witness statement (Exhibit A2, para [87]), the Applicant stated that “I have been successfully able to avoid working with live high voltage current since the incident with the switchboard”.
In his witness statement (Exhibit A2, para [21]-[22]), the Applicant referred to another incident whereby he was washed overboard when serving on the HMAS Diamantina in 1965 (washed overboard incident). He only recalled this incident in 2006 when he started having flashbacks (Exhibit A2, para [23]). He remembered looking up and seeing the ship on the horizon (Exhibit A2, paras [24]). The Applicant did not seek to rely on this incident as the cause of his PTSD, however the Tribunal notes it here because it is referred to later in the expert evidence of Dr Edwards-Smith.
With respect to the electrocution incident, at the hearing the Applicant was able to identify the location of the switchboard room on a map of the ship (Exhibit R8), confirm further details about the dimensions of the switchboard room, the positioning of the stretcher, and other details about the layout of the switchboard room. The Applicant described the switchboard room as a relatively small and narrow room which he estimated to be about 18 foot long and five or six feet wide, and which contained a large electrical switchboard which had a safety rail around it (transcript, page 54).
The Applicant described that the rail stopped anyone from getting too close to the switchboard and that one would have to hold the rail to reach over to the switchboard (transcript, page 38). The Applicant gave evidence that the narrow dimension of the room and the location of the rail meant that it was necessary to walk to the end of the room standing sideways (transcript, page 38-39). Given the narrow width of the room, the Applicant gave evidence that, when he was ordered to sleep in the switchboard room, his stretcher was partly underneath the safety rail so that he “…was half under the rail and half out of the rail” (transcript, page 39).
Counsel for the Respondent submitted that the switchboard room was in fact a larger room which counsel for the Respondent identified in one of the photographs contained in Exhibit R8. This photograph shows a larger room with two desks – one on either side of the room – and a stretcher made up with bedding located in the middle of the room. When this was put to the Applicant during cross examination, the Applicant emphatically denied that it was the switchboard room and identified the room in the photograph as an electrical office on deck five of the HMAS Sydney or the HMAS Melbourne (transcript, page 44).
When asked about the origin of this photograph, and why the Respondent submitted that it was the switchboard room, counsel for the Respondent was unable to provide a satisfactory explanation, other than to confirm that the photo came from the “defence archives” (transcript, page 105). Thus, there was no information before the Tribunal as to the basis for which this photograph was asserted to be the switchboard room, nor any information with respect to the expertise of the person at the defence archives who asserted that the photograph was of the switchboard room. Further, the Tribunal observes that the larger dimensions of this room do not accord with the dimensions of the switchboard room as shown on the hand drawn map marked “main deck (deck 4)” in Exhibit R8. The photograph of this larger room also appears to the Tribunal to be an office, rather than a switchboard room, as indicated by the two desks, clipboard with paperwork on the left-hand wall, paperwork and plastic cups on both desks. Additionally, there is no switchboard shown in the photograph.
Counsel for the Respondent also suggested, during cross examination, that as there was no medical record of the electrocution incident, the incident may not have occurred (transcript, page 50). Counsel for the Respondent noted that the Applicant had reported to the sickbay on numerous other occasions during his service (transcript, page 50, T27, pages 134 to 169). The Applicant’s evidence was that he attended the sick bay for medical treatment when it opened the next morning at 8am, but stated that he “told the young bloke that I didn’t want to make too many waves, because I’d be in strife again” (transcript, page 49). During cross-examination, the Applicant also replied that “there’s lots of records here that are not here”, such as for the removal of a big toe nail and another for burns on his back (transcript, page 50). The Applicant stated that he did not remember if his burns were bandaged, but thought that some plaster band aids would have been applied (transcript, page 50).
The Tribunal notes that the electrocution incident occurred in 1967 whilst the Applicant was on the HMAS Sydney off the coast of Vietnam during the height of the Vietnam War. The medical records before the Tribunal are hand written records, and, if one accepts the evidence of the Applicant that he “told the young bloke that I didn’t want to make too many waves, because I’d be in strife again”, it is highly plausible that an accurate record was not made at the time. Indeed, it should be remembered that the electrocution event occurred over 50 years ago, and it is certainly plausible that handwritten medical records made at that time may have been lost or misplaced over the passage of so many years. Indeed, during cross-examination the Applicant stated that “…it’s quite well known that medical records are not very well kept. It was quite common for stuff to go missing between ships in those days” (transcript, page 51).
The Tribunal also notes a letter dated 20 May 2007, addressed “to whom it may concern” from A.D Froude, which confirms that the electrocution incident occurred (T21, page 91). The letter states:
I served with Peter Bradley onboard HMAS Sydney during 1967 and 1968. We lived in the same Mess, 4L2 Electrical. Peter was a Leading Electrician at the time and I was a Naval Shipwright 3rd Class.
I clearly remember Peter being directed to sleep in the main switchboard compartment by the Chief Regulating Electrician and I remember that there was an incident when he received an electrical shock from the board whilst asleep. The incident caused quite a stir amoung (sic) other electrical ratings at the time. There seemed to be a general feeling that there was a personality clash between Peter and the Chief Electrician and he was being singled out and victimized (sic). I recalled that there were other incidents between Peter and the Chief, there was something to do with the Battery Store. However, I cannot recall full details of the incident.
This letter further supports the Applicant’s evidence that the electrocution incident occurred.
The Respondent also suggested that the Applicant did not raise the issue of double incontinence until after he was unsuccessful with his previous claim for PTSD. Specifically, the submission was that “… the lateness of the raising of the incontinence is suggestive of possible exaggeration of the incident, particularly given the disclosure is not made until after the earlier findings that the incident was not sufficiently traumatic to meet the diagnostic criteria” (transcript, page 102). Under cross-examination the Applicant explained why he delayed in disclosing the double incontinence (transcript, page 49):
MS OLIVER:   Now, we have heard from Dr Fellows-Smith this morning, that you have told him that that involved both a urinary incontinence and faecal incontinence?
APPLICANT:   M’mm.
MS OLIVER:   Now, that’s not something you have mentioned to any of the other doctors before, is it?
APPLICANT:   No.
MS OLIVER:   And it’s not something that you have mentioned to Dr Fellows-Smith?
APPLICANT:   I was –
MS OLIVER:   For the reports that he has prepared in this case?
APPLICANT:   Yes, I’m a little bit reluctant to talk about things like that. You’re a bloke, you don’t tell people everything that happens to you. You tell them what you think they need to know. Still didn’t enjoy listening to this morning’s conversation about me and my problem.
The Tribunal accepts that the Applicant was embarrassed and may not have disclosed the double incontinence as a result. The Tribunal is not of the opinion that the Applicant exaggerated the incident. This view is further supported by the evidence of the Applicant’s treating psychiatrist, Dr Fellows-Smith. Under cross-examination, Dr Fellows-Smith was asked about the Applicant’s delay in disclosing the double incontinence. The following exchange is relevant (transcript, page 24-25):
MS OLIVER:   Now, in this case Mr Bradley was asleep when this electrocution was said to have occurred?
DR FELLOWS-SMITH:         Yes, that’s correct. Yes.
MS OLIVER:   And it’s only after he’s woken up and looked at his hands that he’s made the assumption that he’s been electrocuted, that’s correct?
DR FELLOWS-SMITH:         No. He was thrown against a wall and he had double incontinence as well of faeces and urine and was sitting covered in his own fluids. So there was more to it than just a burn. I think that’s been a problem with the evidence, he’s not put that forward through embarrassment and it’s understandable embarrassment. And that’s actually part of his post-traumatic stress disorder is that emotion of embarrassment.
MS OLIVER:   And he didn’t tell you about that at all either, did he, until fairly recently?
DR FELLOWS-SMITH:         Yes, we’ve formed a good rapport. Mr Bradley knows that he can tell me virtually anything and I’m not going to judge him impartially or critically and certainly not when there’s a natural reaction to such an event. I did a Google search on whether it’s common and, in fact, in electrical injury it’s not a common reaction to have double incontinence. It’s much more characteristic of the troops that I’ve seen coming back from warfare and they often say that when they’re extremely frightened they do have double incontinence and they’re extremely embarrassed about it, of course.
MS OLIVER:   Yes, sorry, but my question was you’ve only recently been told about this. That’s right, isn’t it?
DR FELLOWS-SMITH:         Well, recently is not sort of just like yesterday, I’ve known about it for several years. This process has been going on an awfully long time and, you know, he’s disclosed this to me. Initially he understated it and said it was skid marks in his underwear but it was actually a far worse situation than that. I think Gemma Edwards-Smith, to help you, also referred to it but she was only told about the wetting, she wasn’t told about faecal incontinence.
MS OLIVER:   Yes. And you’ve not mentioned –?
DR FELLOWS-SMITH:         So he developed a rapport with Gemma Edwards-Smith but only to a degree. And I’ve really not laboured that issue with him very much in terms of my respect of Mr Bradley’s courage and his fortitude.
MS OLIVER:   Yes. It would be correct to say though that you've not mentioned faecal incontinence in your reports between 2007 and 2012?
DR FELLOWS-SMITH:         Well, I can’t remember exactly when it was but it might have been after 2012, I mean we’re now at 2018.
MS OLIVER:   Yes?
DR FELLOWS-SMITH:         One of the problems that Peter has is amnesia and I think it’s a sort of dissociative amnesia or selective forgetting, which is a defensive structure that he’s got. And I think that’s one of the problems is when you’re assessing someone you can actually trigger an acute stress response and I’ve tried not to do that. And I think in therapy he’s actually got to a stage when he can talk about these issues but also it’s extremely embarrassing for him.

In his witness statement, the Applicant gave the following evidence relevant to his alcohol use disorder (Exhibit A2, paras [19]-[20]):
19. When I joined the Navy as a 16 year old I did not drink alcohol.
20. I was introduced to alcohol and started drinking when I was about 16 years and 8 months old.
He further stated that after the washed overboard incident (Exhibit A2, paras [26]-[30]):
26. After this incident my alcohol consumption increased significantly, but I cannot be sure it was as a result of it.
27. Between June 1969 and June 1970 I was able to stop drinking altogether.
28. I recommenced drinking in 1970.
29. After Cyclone Tracey in 1975 my drinking escalated significantly.
30. I was not in Darwin during Cyclone Tracey, but we were there afterwards and saw the aftermath, which was distressing.
The Applicant gave the following evidence about his drinking after the electrocution incident in his witness statement (Exhibit A2, paras [62]-[66]):
62. It was quite soon after the [electrocution] incident that I started having anger problems.
63. My drinking increased and I have had problems controlling my drinking ever since.
64. At time (sic) I have been able to stop drinking altogether, but that only lasted short periods before I started drinking again.
65. I have dreams and flashbacks about what happened.
66. I dream about being electrocuted and thrown across the room.
The Tribunal is of the opinion that the Applicant was an honest and reliable witness who gave evidence to the best of his recollection, despite the passage of more than 50 years since the electrocution incident. The Tribunal accepts that the electrocution incident occurred, and that the absence of a medical record being made at the time can be plausibly explained. The occurrence of the electrocution incident was also supported by the letter from Mr Froude. The Tribunal further accepts that the electrocution incident occurred in the manner described by the Applicant, and that the Applicant avoided recounting the incident until approximately 2012 due to shame and embarrassment. Accordingly, the Tribunal is not of the view that the Applicant exaggerated the incident, and accepts the evidence of the Applicant and Dr Fellows-Smith (discussed below) as to why the Applicant did not disclose his double incontinence. With respect to the Applicant’s drinking, although the Applicant commenced drinking as a 16 year old, and his drinking increased following Cyclone Tracey, the Tribunal accepts the Applicant’s evidence (which is again supported by the evidence of Dr Fellows-Smith discussed below), that the Applicant’s drinking increased to a more serious extent after suffering PTSD due to the electrocution incident.
EXPERT EVIDENCE
The Tribunal heard evidence from two expert medical witnesses. The Applicant called his treating psychiatrist, Dr James Fellows-Smith, and the Respondent called Dr Gemma Edwards-Smith, who examined the Applicant on 25 May 2017 and 9 June 2017 for the purpose of preparing a medico-legal opinion for the Respondent (Exhibit R3).
Dr James Fellows-Smith
Dr Fellows-Smith has been practising as a psychiatrist for 30 years, and commenced treating the Applicant on 25 April 2007 (transcript, page 16). His qualifications are Bachelor of Medicine, Bachelor of Surgery (MBBS), Master of Medical Science (MMedSc), Member of the Royal College of Psychiatrists (MRCPsych), Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) and Fellow of the Australasian Chapter of Addiction Medicine, Royal Australasian College of Physicians (FAchAM). Dr Fellows-Smith has extensive experience working with veterans, including Vietnam veterans, over several decades and reported seeing veterans in his practice on a daily basis (transcript, page 21).
At the Tribunal hearing Dr Fellows-Smith gave evidence that he had diagnosed the Applicant with PTSD. When asked by counsel for the Applicant to identify the cause of the Applicant’s PTSD, Dr Fellows Smith stated (transcript, page 18):
I believe it was the traumatic incident that occurred on board HMAS Sydney when they were – it was two days before Christmas 1967 and he was in the switchboard room down below and was ordered to be there and then when he was asleep he rolled on his right side and his right hand went into the switchboard, so causing this contact with the electrical current, and I believe the electrical current was quite considerable. The voltage itself isn’t really the lethal problem, it’s the amount of amps that he gets from this – the switchboard and I believe the circuit was controlling the lighting on board the ship, so –
However, the Tribunal notes that the existence of a Statement of Principle will satisfy the issue of causation. The statement of Dr Fellows-Smith above further strengthens the hypothesis which will be discussed below.
Dr Fellows-Smith explained the basis for his diagnosis as follows (transcript, page 16-17):
MR GRAYDEN:         So, what is the basis then on which you’ve arrived at your current diagnosis, or your diagnosis of PTSD?
DR FELLOWS-SMITH:         Well, it conforms to – I believe it conforms to, in terms of DSM-4-TR, both category A1 and 2 that I’ve already referred to.
MR GRAYDEN:         Yes?
DR FELLOWS-SMITH:         And the reason I’ve mentioned Category A1 is because it’s important in veterans’ compensation issues to conform to the Statement of Principles about the type of stressor and I actually believe that he had a type 1A stressor and that it was life-threatening trauma. Now, the trauma was more complex than just the fact that his hand had hit electrical terminal. That the point was that he was ordered to sleep in a dangerous place and having woken up, having touched the terminal and been thrown against the wall, he also was embarrassed by his incontinence, both of urine and faeces, and he was also worried about how the men would construe his reaction. So, he had an anticipatory fear of being re-traumatised if his hand went back – if he fell asleep and also how the moral injury would be repeated by further bullying from his colleagues and that, I believe, conforms to his sense of integrity – physical integrity and risk to his life.
MR GRAYDEN: Yes?
DR FELLOWS-SMITH:         For Category 2, while he was sitting there he felt helpless. He was horrified at what had happened and he had anticipatory intense fear that this would happen again, so I think he also conformed to A2, although my colleague have tended to downplay his reaction at the time, possibly related to his embarrassments about how he was. In fact, he didn’t disclose his double incontinence to me until quite some time after the initial report was done.
MR GRAYDEN: Yes?
DR FELLOWS-SMITH:         Having been traumatised like that, then he conformed to all the issues of re-experiencing. The re-experiencing is particularly relevant to his family situation in that he had young children soiling and also coming into contact with electrical wires in his house and I think that also triggered him and exacerbated the problem. He was avoidant to situations at work where, in his knowledge about electricity, there’s a complex issue with DC voltage. So, when the DC voltage is high, you can be thrown away from the source, such as a lightning strike, and in this case that’s what happened, but you can also be stuck to the voltage source by tetanus in the hand or by your body and not thrown away and that can be a lethal occurrence and the amount of DC current is fairly critical and he chose then to not work in DC environments that were greater than 12 volts. He also was triggered by any reminder of moral injury and authority issues subsequent to that and this triggering, I believe, created a dissociative type of post-traumatic stress disorder and that translated to some cognitive difficulties and also problems with aspect regulation and sleep disturbance and caused impairment to his lifestyle and his ability to work and, in particular, his relationship to his primary support system.
MR GRAYDEN: Yes?
DR FELLOWS-SMITH: That could be a problem.   It was modulating his arousal using alcohol and he developed heavy drinking and problems related to intoxication, which mirrored his level of post-traumatic stress disorder quite closely.
In summary, Dr Fellows-Smith’s evidence was that the Applicant met the diagnostic criteria for PTSD under the relevant Statement of Principles and that the Applicant’s PTSD arose from the electrocution incident.
Dr Gemma Edwards-Smith
Dr Edwards-Smith’s qualifications are Bachelor of Medicine, Bachelor of Surgery (MBBS) from the University of Western Australia and Fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) (Exhibit R3, page 1). Dr Edwards-Smith has been conducting independent medical examinations for 15 years;has some experience working with recently returned veterans at Hollywood Hospital, although she stated that working with veterans is “not a big part of my practice” (transcript, page 59; Exhibit R3, pages 1 and 2); and estimated that working with veterans would be less than 10 percent of her practice (transcript, page 68).
Posttraumatic stress disorder
Dr Edwards-Smith prepared a report about the Applicant, which was dated 25 May 2017 (Exhibit R3). In response to the question “[d]oes the applicant meet the criteria for the diagnosis of Post-Traumatic Stress Disorder under SOP No. 82 of 2014, and if not, does he meet the criteria under the earlier SOP No. 5 of 2008?”, Dr Edwards-Smith stated (Exhibit R3, pages 14-15):
Ultimately, the diagnosis of Post-Traumatic Stress Disorder is contingent upon the reliability of the patient’s history and the factual basis for the reported traumatic events.
Based upon the history, I think it is clear that Mr Bradley focuses particularly on the alleged electrocution incident, and not the matter of apparently being washed overboard, while serving on the Diamantina. Indeed, I had to prompt him about this. The specific incident he referred to was that which had occurred on the Sydney, when he was ordered to sleep near the switchboard on a stretcher. He told me that he woke during the night to discover physical symptoms and he then concluded that he had experienced an electrical shock.
If I understand his history correctly, and it does seem to have been consistently reported to the assessing specialists, he woke after apparently being exposed to what he has determined to have been a potentially life-threatening event.
I think it is questionable that this would meet criterion A1 for Post-Traumatic Stress Disorder with respect to the traumatic event.
Obviously, Mr Bradley would dispute this as he believes that the event indeed was potentially life-threatening, however the ‘Amended Statement of Principles’ concerning Post-Traumatic Stress Disorder number 19 of 2014, has amended the criteria for the traumatic event to include ‘having a perception of threat and/or harm to the integrity of the self, as a consequence of being in threatening, hostile, hazardous or menacing situation or environment before the clinical onset of Post-Traumatic Stress Disorder’. I think that theoretically, the description of the events on the Sydney in which Mr Bradley alleges that he was electrocuted, could meet the criteria and therefore if his history is accepted with respect to the incident itself, and the subsequent re-experiencing phenomena and associated psychological symptoms of Post-Traumatic Stress Disorder including irritability and anger, sleep disturbance and avoidance behaviour, that the criteria for Post-Traumatic Stress Disorder utilising the Amended Statements of Principles from 2014, could theoretically be met.
Ultimately, however I do note that Dr Mander has quite appropriately raised concerns about the credibility of his history, and I understand that there is no evidence for the alleged electrocution incident, and hence if there is no factual basis for the incident itself, then the diagnosis of Post-Traumatic Stress Disorder could not be met. Therefore, ultimately the matter does rest upon the credibility of Mr Bradley’s history. It is also relevant that Mr Bradley has been participating in assessments for the purpose of the current claim for a number of years and thus retold the story many times, perhaps amplifying to him the relevance of the potentially compensable incidents and minimising the multiple other relevant causative factors. (Emphasis added.)
In summary, Dr Edwards-Smith is indicating that her opinion that the Applicant was not suffering from PTSD was largely based upon her view that the Applicant had not given a credible history and as a result, he had not been exposed to a life threatening event.
At the Tribunal hearing it was evident from the evidence given by Dr Edwards-Smith that her understanding of the electrocution incident was different from that described by the Applicant in his witness statement and as understood by the Applicant’s treating psychiatrist, Dr Fellows-Smith. In her evidence to the Tribunal, Dr Edwards-Smith read from her report where she stated that the Applicant “woke with his face on the wall, the stretcher in the air” (transcript, page 64). She further stated that “…there’s no evidence actually that at the time there was ever an electrocution incident” (transcript, page 66). The following exchange with the Senior Member is also relevant (transcript, page 67):
SENIOR MEMBER: … I was just looking at the paragraph 44 [of the Applicant’s witness statement – Exhibit A2]:
While I was asleep, I was awoken by being thrown out of bed. I hit the floor and was confused, didn’t know immediately what happened, thought, ‘bloody hell what was that’ or similar. Looked at my hand and saw two blisters were forming.
I just wonder, is that consistent with the history that you were given?-
DR EDWARDS-SMITH: No, it’s not.
SENIOR MEMBER: If that was the history that you were given, would that change anything or -?
DR EDWARDS-SMITH: Well, I think there’s different histories gathered by different providers and it’s now very difficult to ascertain the actual factual basis which, for PTSD, is very important in terms of making the diagnosis and I do think the reliability of the histories is concerning to me. However, to answer what you’ve asked me, it still indicates that he saw blisters forming and then says:
I realised I had touched the buzz bars in my sleep and had received an electrical shock from the switchboard.
That’s still a conclusion that he’s imagined, like, there’s no evidence that that happened. So, I still would question it, but it would make it more likely, yes.
In summary, if Dr Edwards-Smith accepted the history of the electrocution incident given by the Applicant in his evidence to this Tribunal, she may have diagnosed the Applicant with PTSD.
Dr Edwards-Smith did not however, based on her understanding of the electrocution incident, think that the Applicant had the required “perception” of threat and/or harm required under factor (ba) of clause 6 of SOP No. 5 of 2008 (as amended by SOP No. 19 of 2014). Dr Edwards Smith stated in her evidence to the Tribunal that (transcript, page 63):
..a perception requires a stimulus, so that’s the psychiatric definition of a perception, so it’s a sensory perception. In my view, it’s not simply a belief, sometime later, that something might have happened. I think, in addition, my view is that there’s different ways that someone can perceive it. So, if you’re a serving member of the Armed Forces, walking through a landmine area, I think it’s reasonable to perceive that you’re at imminent risk of being blown and that in itself could be traumatic.
Or if you’re in an armed vehicle driving through an area where there are – there is a significant risk of being bombed or shot at, or you’re coming directly under fire, I think it’s reasonable to perceive that your life is at risk and that’s a significant traumatic event. Even if you’re never blown up or never shot, I think everyone would agree that individuals under those conditions would perceive that they’ve been through a trauma, sufficient to meet the criteria for PTSD. So, in this case, as in all psychiatric cases, it comes down to looking at the event, the history, the criteria and the symptoms.
And in my view, waking up after an incident with a burn and having wet himself, and eventually at some stage later, thinking he might have been electrocuted or that’s an explanation for the event, doesn’t meet the threshold criteria. That’s just my opinion. (Emphasis added.)
Dr Edwards-Smith also provided the following explanation of “perception” in a supplementary report dated 20 April 2018 (Exhibit R7):
A literal interpretation of ‘perception’ is that it requires an external stimulus, and my response to Mr Bradley’s interpretation of the events which he considered relevant to the diagnosis of Post Traumatic Stress Disorder, ie. that he was potentially exposed to an electric shock incident on the HMAS Sydney, was that in fact it was his subsequent interpretation of a burn he identified on his hand, that led him to consider that he had received an electric shock. I think again this is a retrospective attribution rather than a direct perception of events, noting that he was asleep at the time that he would have been ‘electrocuted’. (Emphasis added.)
The Tribunal observes that Dr Edwards-Smith’s comments about perception are based on her understanding of the electrocution incident either not occurring, or occurring to a less serious extent than that described by the Applicant to this Tribunal and to his treating psychiatrist. The words highlighted in bold by the Tribunal in the transcript from Dr Edwards-Smith’s evidence (in paragraphs [70] and [71] above), illustrate her opinion that the electrocution incident was not sufficiently traumatic to meet the diagnostic criteria in the Statement of Principle.
However, if one accepts the evidence of the Applicant and Dr Fellows-Smith with respect to the occurrence and extent of the electrocution incident, the factor in clause 6(ba) can certainly be said to have been met. The Applicant experienced a violent electric shock after which he was thrown across the room, experienced double incontinence and felt an immediate stinging in his fingers where he touched the electrical switchboard. Counsel for the Respondent submitted that because the Applicant was asleep when he was electrocuted, it could not be said that he directly experienced, or was consciously aware of a traumatic event (transcript, page 100-101). The Tribunal disagrees with this submission, firstly because this was not where the incident ended. The Applicant was required to stay in a life threatening, traumatic situation and/or environment by having to return to his stretcher for the remainder of the night, endeavouring not to fall asleep due to the fear that he may experience a further life-threatening electrocution if he did, and with the knowledge that he had just experienced a life-threatening, or at the very least hazardous event. The Tribunal further acknowledges the objective, as well as the subjective requirements of the factor in clause 6(ba), and is of the opinion that a reasonable person in the circumstances of the Applicant would also have considered this to be a threatening, hazardous and/or menacing situation and/or environment.
Alcohol use disorder
With respect to alcohol use disorder, in her report dated 25 May 2017 (Exhibit R3), Dr Edwards-Smith stated that the Applicant met the criteria for the diagnosis of alcohol use disorder under SOP No 1 of 2009 (Exhibit R3, page 18). She further stated that (Exhibit R3, page 18):
The diagnosis of Alcohol Use Disorder is identified given the history of problematic consumption of alcohol for over 12 months. Indeed, for over 30 years, this is including the increasing consumption, unsuccessful attempts to cut down, negative impact on social and personal relationships, the diagnostic criteria of the diagnostic and statistical manual of Mental Disorders, Fifth Edition, and for Alcohol Use Disorder are also met.

Further, at page 19 of Exhibit R3, Dr Edwards-Smith stated:
Ultimately, whether or not the factors referred to in paragraph 6 of the SOP are met, depends upon the whether or not a category 1A or 1B stressor is accepted as having occurred.
In response to my questions regarding Post-Traumatic Stress Disorder, I indicated that it is theoretically possible utilising the 2014 SOP for Post-Traumatic Stress Disorder, that category 1, the stressor, may have been met. The issue however is that it has not been accepted as factually correct that the incident occurred as reported. If it is then yes, I do consider that category 1B stressor was experienced in the five years before the clinical worsening of Alcohol Use Disorder could be considered to have occurred.
In summary, Dr Edwards-Smith accepted that the Applicant has alcohol use disorder, and acknowledged that whether it fell within the relevant Statement of Principles was dependent upon the Applicant having a clinically significant psychiatric condition at the time of the clinical onset of the alcohol use disorder (PTSD), which she believed that the Applicant did not meet the diagnostic criteria for. However, if the Applicant did meet the diagnostic requirements for PTSD, he could be considered to have alcohol use disorder. In this sense, the evidence of the two medical experts was consistent.
Summary
With respect to PTSD, the Tribunal prefers the evidence of the Applicant’s treating psychiatrist, Dr Fellows–Smith over that of Dr Edwards-Smith. Dr Fellows-Smith has substantially more experienced treating veterans than does Dr Edwards Smith, and he has had the advantage of a longitudinal perspective from treating the Applicant over a long period of time, since 25 April 2007. Dr Edwards Smith, however, only saw the Applicant on two occasions for the purpose of undertaking a medico-legal assessment, which, whilst being less prone to therapeutic bias than assessment by a treating practitioner, can have the disadvantage of resulting in a more superficial assessment.
As indicated above, the Tribunal accepts the version of events given by the Applicant regarding the electrocution incident. This version of events was not, however accepted by Dr Edwards-Smith who expressed some doubt as to whether the electrocution incident occurred, and based her conclusions on a less traumatic version of the electrocution incident. This was likely contributed to some extent by the Applicant who only mentioned his urinary incontinence, and not his faecal incontinence to Dr Edwardes-Smith. The Tribunal is of the opinion that due to the Applicant’s relationship of trust and confidence with Dr Fellows-Smith, and due to the advantage of a longitudinal perspective, Dr Fellows-Smith had the benefit of a more accurate history and was able to make a more accurate diagnosis of the Applicant.
CONSIDERATION
As noted in the discussion of the Applicant’s evidence, and the expert evidence above, the Tribunal finds that the Applicant suffers from PTSD which also led to his alcohol use disorder. These findings will be expanded upon below in the discussion of step four from Deledio.
The next step for the Tribunal is to apply the four step process identified by the Full Court of the Federal Court in Deledio as follows:
…the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
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 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 doing so, no question of onus or proof or the application of any presumption will be involved.
Applying the first of the four steps from Deledio, the Tribunal finds that the material before it points to a hypothesis connecting the psychiatric disorder of PTSD, and the subsequent alcohol use disorder, with the particular circumstances of the service rendered by the Applicant. The hypothesis is that the electrocution incident on board the HMAS Sydney in 1967 caused the Applicant’s PTSD and further, the Applicant’s alcohol use disorder.
Applying the second step from Deledio, the Tribunal notes that there is in force a Statement of Principles which supports the hypothesis raised by the material before the Tribunal. As discussed by the Tribunal earlier in these reasons for decision, for the claim of PTSD, the relevant Statement of Principles is SOP No. 5 of 2008, as amended by SOP No. 19 of 2014. For the claim of alcohol use disorder, the relevant SOP is SOP No. 48 of 2017.
Applying the third step identified in Deledio, the Tribunal has formed the opinion that the hypothesis is reasonable because it is consistent with, and “fits” within, the template in the relevant Statements of Principles. That is, the Applicant’s story, as recounted in his evidence, is most certainly capable of fitting within the template provided by the Statements of Principles. That is, that the electrocution incident was a life-threatening event which would comprise a category 1A stressor, and alternatively meets the factor of “having a perception of threat and/or harm”, within the meaning of clause 6(ba) of SOP No. 5 of 2008 (as amended). His alcohol use disorder fits within the template in SOP No. 48 of 2017, specifically factor 9(1), because again, the story recounted by the Applicant in his evidence is that his alcohol use increased substantially after the electrocution incident. To clarify, the reference to the Applicant’s “story” and “evidence” by the Tribunal in this step are made at face value, without reference to any factual findings, which are to be applied in step four.
The fourth and final step from Deledio, requires the Tribunal to consider whether it is satisfied beyond reasonable doubt that the Applicant’s PTSD and alcohol use disorder were not war-caused. At this point, the Tribunal can consider the evidence, and make findings of fact. However, there is no evidence before the Tribunal to satisfy it beyond reasonable doubt that these conditions were not war-caused. The evidence before the Tribunal, including the evidence of the Applicant, and the expert medical evidence, indicates the opposite. The Tribunal is satisfied that the electrocution incident did occur, and that the Applicant has PTSD. The Tribunal prefers the medical evidence of the Applicant’s treating psychiatrist, Dr Fellows-Smith who diagnosed the Applicant with PTSD which, in his opinion, was caused by the electrocution incident. Although the relevant SOPs remove the need to establish causation, this evidence does further strengthen the Tribunal’s opinion that the hypothesis is reasonable.
Additionally, both doctors gave consistent evidence that if the Applicant suffered from the clinically diagnosed condition of PTSD that he would also meet the requirements in the relevant Statement of Principles for alcohol use disorder. The Tribunal is of the opinion, after considering the Applicant’s evidence, and the evidence of his treating psychiatrist, that he suffered from PTSD before his drinking became problematic.
In summary, the Tribunal is not satisfied beyond reasonable doubt that there are sufficient grounds for making a determination that the Applicant’s PTSD and alcohol use disorder are not war-caused, and therefore the Applicant’s claim must succeed.
DECISION
For the reasons set out above, the Tribunal finds that the Applicant suffers from PTSD and alcohol use disorder, which were war-caused within the meaning of the VEA.
Accordingly, the Tribunal:
(a)sets aside the Reviewable Decision dated 26 July 2016; and
(b)makes a decision in substitution for the decision so set aside that the Applicant suffers from PTSD and alcohol use disorder which were war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

................[sgd]........................................................
Administrative Assistant Legal
Dated: 28 September 2018

Dates of hearing: 16 and 17 July 2018

Representative for the Applicant: Mr Robert Grayden

Solicitors for the Applicant: Robert Grayden Legal

Counsel for the Respondent: Ms Sarah Oliver

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 3660

28 September 2018

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Administrative Law

Statutory Interpretation

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Expert Evidence

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Procedural Fairness

Standing

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Dates of hearing:	16 and 17 July 2018
Representative for the Applicant:	Mr Robert Grayden
Solicitors for the Applicant:	Robert Grayden Legal
Counsel for the Respondent:	Ms Sarah Oliver
Solicitors for the Respondent:	Australian Government Solicitor