Campbell and Repatriation Commission (Veterans’ entitlements)

Campbell and Repatriation Commission (Veterans’ entitlements) [2015] AATA 605 (18 August 2015)

Division

VETERANS' APPEALS DIVISION

File Numbers

2013/5883-5884

Re

Andrew Campbell

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal Ms G Ettinger, Senior Member

Date 18 August 2015

Place Sydney
The Tribunal notes the concession of the Repatriation Commission, and sets aside the decision of the Veterans’ Review Board which held that Mr Campbell’s osteoarthrosis of both feet and both knees is not defence-caused. In substitution, the Tribunal finds that the Veteran’s osteoarthrosis of both feet and knees is defence-caused with effect from 23 August 2011.

The decision of the Veterans’ Review Board with regard to Mr Campbell’s psychiatric conditions is affirmed.

..................[sgd].................................................
Ms G Ettinger, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – PTSD and/or Generalised Anxiety Disorder – Applicant subjected to three major stressors, being an incident of arrest and inappropriate treatment during service (1990), a motor vehicle accident in which the driver, his fiancée, was killed (1986), and an assault at the Dapto Leagues Club (1993) whether psychiatric conditions are defence-caused – Tribunal gives effect to the Respondent’s concession that osteoarthrosis of both feet and both knees is service related – Tribunal affirms the decision of the VRB that the Applicant’s psychiatric conditions are not related to service
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, 120B
SECONDARY MATERIALS
Statement of Principles concerning anxiety disorder No. 102 of 2007 as amended by No. 43 of 2010 and No. 16 of 2011

Statement of Principles concerning anxiety disorder, No. 103 of 2014
Statement of Principles concerning depressive disorder, No. 28 of 2008 as amended by No. 41 of 2010
Statement of Principles concerning depressive disorder, No. 84 of 2015

Statement of Principles concerning posttraumatic stress disorder, No. 83 of 2014
REASONS FOR DECISION
Ms G Ettinger, Senior Member
18 August 2015
SUMMARY

Mr Andrew Campbell who is 53 years old, served in the Royal Australian Air Force (RAAF) between June 1978 and January 1995. His service constitutes eligible defence service.
Mr Campbell has been the subject of three major stressors, being an incident of unlawful arrest and imprisonment, inappropriate treatment and false prosecution at Glenbrook, during service, in 1990; a motor vehicle accident (MVA) in 1976 in which the driver, his fiancée, was killed and he suffered serious injuries; and an assault by seven drunk men at the Dapto Leagues Club in 1993.
Mr Campbell claims that the incident of the arrest in 1990 has been the cause of his psychiatric illness. In his report of 1 May 2014, Dr S Smith, a psychiatrist, diagnosed Post-Traumatic Stress Syndrome (PTSD), in partial remission, due, firstly to the events associated with the motor vehicle accident in 1976, as well as the assault at the Dapto Leagues Club in 1993. He opined that the incident in 1990 did not itself result in the development of PTSD, nor Major Depressive Disorder, or Dysthymic Disorder. He described the 1990 incident as resulting in transitory symptoms that I would describe as a normative stress reaction … In my opinion the magnitude of his distress was not of sufficient severity that would have resulted in the development of a formal psychiatric disorder
In his report dated 20 August 2014, Dr A Durrell, also a psychiatrist, stated that Mr Campbell presented with signs and symptoms of psychopathology to satisfy DSM-V in regard to Generalised Anxiety Disorder (GAD) of moderate severity following the 1990 Glenbrook abuse incident. He also identified PTSD which he opined had been in stable remission for more than 10 years, (later modified during oral evidence to partial remission), and which arose out of the motor vehicle accident in 1976, and the Dapto Leagues Club incident in 1993.
On 6 September 2013, the Veterans’ Review Board, (VRB), rejected Mr Campbell’s claim for depressive disorder and found it not to be defence-caused. As noted above, Mr Campbell was then, in 2014, diagnosed with Generalised Anxiety Disorder (GAD) by Dr Durrell. The VRB also rejected Mr Campbell’s claim for osteoarthrosis of both feet, which was conceded by the Repatriation Commission as defence-caused at the time of the hearing before this Tribunal. I have accordingly given effect to that concession in my decision.
In considering the claim, I have had to apply section 120(4) of the Veterans’ Entitlements Act 1986 (the Act), that is to the reasonable satisfaction of the Tribunal, and apply the relevant Statements of Principle (SoPs) pursuant to section 120 of the Act.
I have found from the evidence, which is discussed below, and the application of the relevant SoPs that Mr Campbell’s claim that the unlawful arrest, imprisonment and ill treatment during service in 1990 caused his psychiatric illness cannot be sustained. I accept the evidence which indicates that the motor vehicle accident in 1976, and in 1993, the assault at the Dapto Leagues Club were the causes of Mr Campbell’s psychiatric illness. Those events were, however, not service related. His GAD is accordingly not defence-caused. My reasons follow.
ISSUES TO BE DECIDED
The issues to be decided are:
·the diagnosis of Mr Campbell’s psychiatric condition;
·whether relevant Statements of Principles are satisfied;
·whether the condition was defence-caused.
LEGISLATIVE ENVIRONMENT
The relevant legislation is the Veterans’ Entitlements Act 1986, in particular section 70 (eligibility for pension) and section 120.
The relevant SoP in this case is for Depressive Disorder, No. 28 of 2008 as amended by No. 41 of 2010, in particular factors 6(a)(i), 6(a)(ii) and 6(a)(v). The current SOP for Depressive Disorder is No. 84 of 2015. The relevant SoP for Anxiety Disorder is No. 102 of 2007 as amended by No. 43 of 2010, and No. 103 of 2014. The relevant SoP for PTSD is No. 83 of 2014.
BACKGROUND
Mr Campbell gave evidence about his work at the Department of Human Services doing training and troubleshooting before joining the RAAF in June 1978. He remained at the RAAF until 1995. He told me that he was in finance and recruitment, that he carried out audits in regard to frauds, and that his evaluation reports always showed that he was performing at a high level. He did a diploma in accounting, and said he loved the work.
Mr Campbell described three incidents during his life which he considered were major stressors. He emphasised an incident which took place at Glenbrook during service in 1990 as the most significant, and the cause of his psychiatric illness. The other two incidents were a motor vehicle accident in which the driver, his fiancée, was killed in 1976 and he was seriously injured, and an assault on him by seven drunk men at the Dapto Leagues Club in 1993.
The motor vehicle accident, 1976
Mr Campbell described the motor vehicle accident in 1976 in which his fiancée was driving, and in which she was killed. He, as the passenger, suffered serious injuries, underwent surgery, and spent 10 days in hospital. He told me that he went through a normal grief process during which his parents and his friends supported him. He said that he had a couple of months off work.
Mr Campbell told me that he subsequently joined the RAAF in 1978, was then super fit, played sport, and met his wife whom he married in 1981. Mr Campbell said that the events of 1976 did not affect his career.
Mr Campbell said he did not have ongoing treatment following the motor vehicle accident. However, Mr K Rudge, who appeared for the Repatriation Commission, took Mr Campbell through several of the medical records which were Exhibit R4 before the Tribunal, as follows:
·A clinical note of 22 January 1981 recorded that Mr Campbell had been treated for cardiac arrhythmia, and suggested anxiety. (p. 341)
When Mr Campbell’s attention was drawn to this note, he stated that he had been suffering low blood pressure.
·A clinical note dated 3 April 1981, recorded that Mr Campbell had been playing soccer, felt dizzy, and attended at the Casualty Department of Wollongong Hospital. (p. 340)
·Mr Campbell was admitted to hospital from 6 – 9 April 1981. The history taken on admission included that Mr Campbell reported left sided chest pain, dizziness, pins and needles, amongst other symptoms. The hospital also recorded (p. 265):
The symptoms had been present significantly over last 8/12 and tended to come on worse when driving and in [certain] situations. The patient felt his symptoms were related to anxiety and felt his problems resulted from a MVA 5 years previously.
…
Dr Wilton (psychiatrist) … felt the patient’s symptoms were due to anxiety.
…
To have relaxation therapy at Bankstown Hospital as requested by Dr Wilton.
Mr Campbell told me he only attended the relaxation therapy once.
·On 9 April 1981, Mr Campbell was referred to Dr Wilton. The referral stated amongst other things, that Mr Campbell had:
a variety of symptoms including chest ache, epigastric pain, tingling in fingers, perioral tingling etc. The patient himself feels his symptoms are anxiety induced and he especially notices them when he was to drive. He puts this down to a bad MVA 5 yrs ago when he was fairly seriously injured. (p. 119)
When asked at the Tribunal to comment, Mr Campbell denied that his symptoms were related to the motor vehicle accident, and stated that he suffered normal grief after the 1976 accident.
I noted that Dr Wilton in his clinical notes of 8 April 1981 at page 120 confirmed that Mr Campbell’s symptoms arose out of anxiety related to the motor vehicle accident of 20 June 1976.
·In a clinical record dated 24 November 1981, there was a note: MVA 5 yr ago & nerves ever since. Chest pain was again mentioned. (p. 338)
·On 22 January 1982, a clinical note records: attack of breathlessness … anxiety … anxiety whilst driving car … pains in chest … since MVA. Mr Campbell was prescribed Serepax. (p. 338)
·A note of 28 April 1981 records: Due to see Dr in Australia Square on 7 May 81 re car accident 20/6/76. (p.339)
·On 13 March 1982 and 19 July 1982, Mr Campbell was again prescribed Serepax. (pp. 336, 337)
·Mr Rudge referred me to clinical notes of Dr Wilton, in particular those dated 26 March 1983 and 9 June 1983, which was seven years following the motor vehicle accident which Mr Campbell denied had a profound effect on him. The referral to Dr Wilton indicated that Mr Campbell was suffering chest pain, and indicated to Dr Wilton that Mr Campbell had previously gained some relief from “edginess” and multiple physical discomforts through psychotherapy.
oOn 26 March 1983, Dr Wilton recorded that Mr Campbell had a history of suffering agarophobia, then largely under control. Dr Wilton also mentioned Mr Campbell reporting chest pain which the Applicant associated with stress. (p. 248)
oOn 9 June 1983, Dr Wilton recorded amongst other things that Mr Campbell was generally very tense. He suggested a referral to a clinical psychologist. (p. 249)
·On 3 December 1990, clinical records pertaining to Mr Campbell recorded that he was stressed++, and that he be referred to a psychologist. (p. 319)
Mr Campbell told me that that was the time between the charges he had against him, and the hearing on 24 January 1991.
The Glenbrook incident, 1990
Mr Campbell described the incident which occurred at Glenbrook in 1990 as the most traumatic of the three serious stressors he had experienced in his life, and the cause of his psychiatric problems. He described how he observed a young woman being abused by his colleagues, and saw them push her. Mr Campbell said he went to her assistance at which a white unmarked car arrived with two men (with no rank badges), left again, and then arrived back with two further men who frog marched him, twisted his hand behind his back above shoulder height, and landed him in a cell approximately 100 yards away. He also reported they said words to the effect: fucking slut … don’t worry about her. Mr Campbell described degrading conditions in the cell overnight where he was not even provided the use of a toilet.
Mr Campbell said he was ordered back to his base, where he felt terrible as he did not know what would happen, and was fearful of losing his posting. He described an inquiry into the incident which took place in 1991, after which he was cleared of any wrong doing. He felt, however, that people were, nevertheless, constantly judging him, and he left the service in 1995.
Following the Tribunal’s hearing, Mr Campbell sent a USB onto which he had copied a summary of the hearings he underwent at the RAAF after the 1990 event. I have not reviewed the content of the USB, and have relied upon page 2‘o’ of the T-documents which indicate that on 24 January 1991 Mr Campbell was found not guilty of any of the charges of which he had been subject. The words of the Presiding Officer were that he found on each of the 13 charges: I find you not guilty … You are therefore discharged. The Respondent indicated that it had no submissions to make upon the content of the USB, except to note that page 2‘o’ of the T-documents records that Mr Campbell was found not guilty on all charges.
I have noted the report of Mr Norman Rees, clinical psychologist, who saw Mr Campbell twice before the hearing of 24 January 1991, and once some two and a half weeks afterwards, on 11 February 1991. Mr Rees recorded that Mr Campbell presented with above average anxiety before the hearing, but that he did not feel he needed to see Mr Campbell again after the consultation of 11 February 1991.
Mr Campbell’s evidence in that regard was that the hearing had resolved matters in his favour, and that there was accordingly no need to further consult Mr Rees.
Mr Rudge’s submission on behalf of the Repatriation Commission was that Mr Campbell’s reaction to the 1990 arrest incident was less severe than the reaction to the motor vehicle accident, as indicated in the clinical notes and medical consultations seven years later.
For the sake of completeness, I note that since that time, Mr Campbell has received a letter of apology from Air Commodore Michael Robert Kitcher of the RAAF, dated 25 June 2015. I note that Air Commodore Kitcher states there that he formally apologises to Mr Campbell for the incident that occurred to him in 1990, the poorly managed follow on processes, and the stress and suffering Mr Campbell had endured. I have noted the findings dated 24 January 1991 of the hearing Mr Campbell underwent above. The letter of Air Commodore Kitcher can in no way influence my findings in this application for review.
The assault at the Dapto Leagues Club, 1993
Mr Campbell gave an account of being assaulted by a group of seven drunk men at the Dapto Leagues Club in 1993. He suffered a broken nose, a bump on the head, and bruised ribs. Mr Campbell said that at first he was just angry, but later became anxious and vigilant. He said that in the 1990s he became socially withdrawn, and started playing pokies.
I noted that Mr Campbell was referred to Ms Jill Farrelly, a clinical psychologist, who saw him on five occasions commencing on 9 November 1993 and concluding on 11 February 1994. Mr Campbell disagreed with certain of Ms Farrelly’s points made in her report, including her statement that Mr Campbell believed the effects of the assault had an adverse impact on his work (Exhibit R3). Ms Farrelly recorded that following the brutal attack, Mr Campbell experienced a number of symptoms of PTSD such as recurrent nightmares, flashbacks, hypervigilance, and a sense of physical vulnerability in certain situations. Mr Campbell also disagreed with Ms Farrelly’s statement that he put a baseball bat near his bed at one time. He told me he has never owned a baseball bat.
Ms Farrelly recorded that one of the men involved in the attack apologised to Mr Campbell, and recorded as follows: … not one day passes when he does not think about it. “There is always some reminder.” Mr Campbell said at the hearing that following the apology he was still thinking about the attack, but that its impact was diminishing.
Ms Farrelly did not mention the motor vehicle accident of 1976, nor the 1990 incident at Glenbrook in her report.
I noted also at Exhibit R3, the record of an interview Ms Rees, a psychologist, conducted with Mr Campbell on 24 May 2001. She mentioned the Dapto assault, Mr Campbell playing competitive soccer, training and other exercise three to four times a week. She noted that he missed the RAAF lifestyle, and considered him to be a team oriented person [with] no areas of concern. In response to the report, Mr Campbell told me at the hearing that after the incident he became a loner and entertained himself with gambling instead of socialising.
Employment Standards Committee Record
Mr Campbell was referred to Exhibit R5, an ‘Employment Standards Committee Record’, dated 30 August 1993. The document recorded that Mr Campbell was assessed as being ‘one of the highest performers’ and that he had an excellent reporting history overall. Mr Campbell said that he had not seen the document previously; he told me that he was playing pokies at that time, which he said did not affect his work. Mr Rudge submitted that the report was dated two years after the arrest and charges, and noted that Mr Campbell was praised as being one of the highest performers. The significance he intended to convey was that Mr Campbell did not suffer long term effects of the arrest incident, whereas he was still suffering symptoms of anxiety which he reported to doctors up to seven years following the motor vehicle accident.
Application for Discharge on Request
Exhibit R6 was a document headed ‘Application for Discharge on Request’ dated 9 November 1994. I am satisfied from the document that Mr Campbell requested discharge due to a restructure which appeared not to provide him a position in the finance area of his preference.
Re-enlistment
Exhibit R7 records that Mr Campbell re-applied to the RAAF in 1996, and said in evidence that he could not recall what had occurred, and that he did not hear back, but that he understood he had been refused.
The document dated May 1996 records that: Although member discharged from the RAAF due to the CLK amalgamation – he has obviously reconsidered … Recommended. The report also recorded in regard to his performance: Very good to almost always outstanding. Mr Campbell was Recommended subject to medical fitness.
Interviewing Officer’s Report
Exhibit R8 was the ‘Interviewing Officer’s Report’ dated 25 May 2001 which recommended Mr Campbell’s appointment. That was Mr Campbell’s second attempt to re-enlist.
Ms Kristen Rees, the psychologist who interviewed Mr Campbell in connection with his application to re-join the RAAF on 24 May 2001 (Exhibit R3), considered him in a very positive light. She mentioned the Dapto assault, and reported that Mr Campbell stated that his PTSD had fully resolved. Ms Rees opined that Mr Campbell had dealt with the PTSD, and noted that it no longer impacted upon him. She considered him to be a team oriented person, and found no areas of concern. She did not mention the 1990 Glenbrook false arrest and imprisonment.
THE DIAGNOSIS OF MR CAMPBELL’S PSYCHIATRIC CONDITION
Mr Campbell was referred to Associate Professor G Davies, a consultant psychiatrist, whom he saw in 2011 and 2012. In his first report dated 13 October 2011, Associate Professor Davies stated that Mr Campbell reported a long history of depression attributable to the motor vehicle accident in 1976, and the false arrest and imprisonment in 1990. Associate Professor Davies stated:
There would be no question that his depressive illness meets the service related criteria set out in the statement of principles concerning depressive disorder.

In his report of 24 July 2012, Associate Professor Davies reported having seen Mr Campbell on six occasions, the last time being 25 May 2012. He opined that Mr Campbell was suffering from moderate depressive illness which seemed to have its origin in both the death of his partner in the motor vehicle accident, and his problems at the RAAF where he had been wrongly court martialled and had received little support from his superior officers.
In his report of 1 May 2014, Dr Smith diagnosed Mr Campbell with Post-Traumatic Stress Syndrome, (PTSD), in partial remission, due, firstly to the events associated with the motor vehicle accident in 1976, as well as the significant assault at the Dapto Leagues Club in 1993, which he considered to be a severe stressor.
Dr Smith opined that the incident in 1990, which was a distressing event for Mr Campbell, did not itself result in the development of PTSD, nor Major Depressive Disorder, or Dysthymic Disorder. No psychiatric illness was diagnosed at the time. He noted that Mr Campbell left the base with other colleagues the day following the arrest, and was able to play soccer. Dr Smith concluded therefore that Mr Campbell was not overwhelmed with anxiety following the arrest. He described the 1990 incident as resulting in transitory symptoms that I would describe as a normative stress reaction… In my opinion the magnitude of his distress was not of sufficient severity that would have resulted in the development of a formal psychiatric disorder.
Dr Smith stated that he understood Mr Campbell was anxious about how the 14 charges arising after the arrest might play out, but that he was not impaired. He noted that the anxiety did not prevent Mr Campbell from doing his job, in which he was highly regarded, and observed that Mr Campbell resigned due to a restructure and, in fact, later applied to re-join the RAAF. Dr Smith noted from the report of Mr N Rees, a consulting clinical psychologist, that Mr Campbell was suffering above average anxiety before the charges were heard, and noted that Mr Rees did not make a formal diagnosis of either PTSD or GAD, and did not continue to see him once the charges had been heard and dismissed.
In his oral evidence Dr Smith referred to his summary of the psychological reports pertaining to Mr Campbell, including that of Ms Farrelly, a clinical psychologist, who saw him five times following the Dapto event. Dr Smith queried why it was that if the Glenbrook incident had such significance for Mr Campbell, that he had not mentioned it either to Ms Farrelly or to Ms Anita Duffy, another psychologist, in November 1993.
Dr Smith commented on Mr Campbell’s history of pathological gambling, and opined that he found it hard to accept that the Glenbrook incident was the cause of that as claimed by the Applicant. I noted that Mr Campbell felt dissatisfied with the interview and discussions he had with Dr Smith. I note it simply for completeness, and do not assign any weight to the opinions regarding Dr Smith as expressed by Mr Campbell.
In his report dated 20 August 2014, Dr A Durrell, also a psychiatrist, who saw Mr Campbell on four occasions, stated that the Veteran presented with signs and symptoms of psychopathology to satisfy DSM-V in regard to Generalised Anxiety Disorder (GAD) of moderate severity following the 1990 Glenbrook abuse incident. He also identified PTSD which he opined had been in stable remission for more than 10 years, and which arose out of the motor vehicle accident in 1976, and the Dapto Leagues Club incident in 1993.
After he had been taken to Mr Campbell’s medical records, including psychological assessments, which indicated that between 1981 and 1983 Mr Campbell exhibited physical symptoms such as cardiac arrhythmia, hospitalisation for anxiety, and anxiety regarding driving a motor vehicle, Dr Durrell modified his earlier opinion that following the motor vehicle accident of 1976, Mr Campbell’s PTSD had been in stable remission. He opined that suffering some anxiety symptoms was almost universal, and noted that Mr Campbell had not been diagnosed with any anxiety disorder at that time. He conceded, however, that his PTSD was only in partial remission at the time of the 1990 Glenbrook incident.
Dr Durrell stated that he agreed with Dr Davies’ and Dr Smith’s diagnostic opinions that the false arrest, imprisonment, trial ordeal, and assault associated with the Glenbrook incident did not cause a PTSD mental injury to Mr Campbell. However, he opined: I did identify persistent and disabling features of a GAD type mental injury caused by the Fairbairn abuse incident. Dr Durrell also noted that Mr Campbell self-medicated with gambling.
Dr Durrell also recorded a second PTSD injury following the assault at the Dapto Leagues Club which persisted for a period of one to two years following the assault. He considered this was also in stable remission and opined that it:
does not presently account for his chronic anxiety and depressive symptoms which have their onset following the Fairbairn incident, associated trial and later stigmatisation as a whistle blower.
…
Chronic distrust and anticipatory anxiety regarding his post-abuse ambivalent relationship with the RAAF following the Fairbairn incident is an entrenched finding.
In his oral evidence, given by telephone, Dr Durrell was referred to a report of Mr Rees, dated 18 October 1991 in which Mr Rees reported that he had seen Mr Campbell on two occasions before the hearing of charges against him by the RAAF, and once on 11 February 1991, approximately two weeks after the hearing. Mr Rees noted that before the hearing, Mr Campbell presented with above average anxiety due to [the] impending charges, and that all matters were resolved in Mr Campbell’s favour. The record indicates that Mr Rees did not see Mr Campbell again once he had recorded that the matters had been resolved in his favour after 11 February 1991 Dr Smith noted that Mr Rees observed: … he seems motivated to continue with a career in the Airforce.
When asked why he thought Mr Campbell would have attempted to re-enlist in 1996 and 2001 if he was so traumatised by the events of 1990, Dr Durrell opined that that action was not unusual, a case analogous to getting back on a horse after falling off.
Dr Durrell was also directed to an interview report of Mr Campbell dated 24 May 2001 when he was seeking to re-enlist. The psychologist, Ms Rees, recorded relevantly as follows and recommended his appointment:
… was physically abused by 7 [men] at Dapto Club – was taken to hospital [and] subsequently received treatment for PTSD … has been fully resolved. I feel that Andrew has dealt w this and it no longer impacts upon him.
…
motivation for RAAF … at this stage due to missing the services, thoroughly enjoyed his time RAAF [and] the work [and] is interested in integrating this into his life again.
…
Overall a strong applicant w much to offer RAAF… overall a mature, resilient, team oriented person [with] no areas of concern.
Dr Durrell expressed a strong opinion that Mr Campbell should have had further treatment by a psychiatrist as he was suffering significant distress from his GAD. He recalled that Mr Campbell, rather than being active in sport and life with friends, self-medicated with gambling.
In summary, the diagnoses of psychiatric conditions in relation to Mr Campbell are as follows (section 120(4) of the Act):
·Dr Davies who saw Mr Campbell in 2011, and six times in 2012, opined that Mr Campbell was suffering from moderate depressive illness which seemed to have its origin in both the death of his partner in the motor vehicle accident, and his problems at the RAAF where he had been wrongly court martialled and had received little support from his superior officers.
·Dr Smith, who saw Mr Campbell on one occasion, diagnosed Post-Traumatic Stress Syndrome, (PTSD), in partial remission, due, firstly to the events associated with the motor vehicle accident in 1976, as well as the assault at the Dapto Leagues Club in 1993, which he considered to be a severe stressor, and significant. In Dr Smith’s opinion, the incident in 1990, which was a distressing event for Mr Campbell, did not itself result in the development of PTSD, nor Major Depressive Disorder, or Dysthymic Disorder. He opined that no psychiatric illness diagnosed at the time. Dr Smith described the 1990 incident as resulting in transitory symptoms that I would describe as a normative stress reaction. Dr Smith stated that he understood Mr Campbell was anxious, as also reported by Mr N Rees, a consulting clinical psychologist, about how the 14 charges arising after the arrest might play out, but that he was not impaired. He noted that Mr Rees did not make a formal diagnosis either PTSD or GAD, and noted that the anxiety did not prevent Mr Campbell from doing his job, in which he was highly regarded. Dr Smith noted that neither Ms Jill Farrelly, a clinical psychologist, who saw Mr Campbell five times following the Dapto assault, nor Ms Anita Duffy, another psychologist whom Mr Campbell saw in 1993, mentioned the Glenbrook incident, which he opined could not therefore have had the significance Mr Campbell now attributed to it. Dr Smith observed that Mr Campbell resigned in 1995 due to a restructure, and in fact, later applied on two occasions to re-join the RAAF.
·Dr Durrell saw Mr Campbell on four occasions, and stated that the Veteran presented with signs and symptoms of psychopathology to satisfy DSM-V in regard to Generalised Anxiety Disorder (GAD) of moderate severity following the 1990 Glenbrook abuse incident. Dr Durrell stated that he agreed with Dr Davies’ and Dr Smith’s diagnostic opinions that the false arrest, imprisonment, trial ordeal and assault associated with the Glenbrook incident did not cause a PTSD mental injury to Mr Campbell. However, Dr Durrell identified PTSD which he opined had been in partial remission at the time of the Glenbrook incident in 1990, and which arose out of the motor vehicle accident in 1976, and the Dapto Leagues Club incident in 1993.
·When asked why he thought Mr Campbell would have attempted to re-enlist in 1996 and 2001 if he was so traumatised by the events of 1990, Dr Durrell opined that that action was not unusual, a case analogous to getting back on a horse after falling off.
·Ms Rees, a psychologist, conducted an interview with Mr Campbell on 24 May 2001 when he was seeking to re-enlist. She recorded relevantly as follows and recommended his appointment:
motivation for RAAF … at this stage due to missing the services, thoroughly enjoyed his time RAAF [and] the work [and] is interested in integrating this into his life again.
…
Overall a strong applicant w much to offer RAAF… overall a mature, resilient, team oriented person [with] no areas of concern.
From the medical evidence discussed above, I am satisfied that Mr Campbell suffered PTSD following the motor vehicle accident in 1976 in which his fiancée was killed, and he was seriously injured. The records indicate he received no treatment following the hospitalisation, until he reported signs and symptoms of anxiety to medical practitioners and was referred to psychiatrists between 1981 and 1983 as indicated in the paragraphs above.
I am satisfied from the evidence that Associate Professor Davies and Drs Smith and Durrell concurred that the false arrest, imprisonment, trial ordeal and assault associated with the Glenbrook incident in 1990 did not cause a PTSD mental injury to Mr Campbell. I accept it was distressing at the time, and accept from Mr Rees’ account that Mr Campbell was suffering above average anxiety before the charges were heard and Mr Campbell exonerated. Mr Rees did not make a formal diagnosis of either PTSD or GAD, and did not continue to see him once the charges had been heard and dismissed.
Ms Jill Farrelly (1993/1994), a clinical psychologist, and Ms Anita Duffy (1993), also a psychologist, did not make mention of the 1990 incident in their reports, and I am satisfied to conclude, therefore, that its impact had reduced or had resolved by the time he saw them to the extent Mr Campbell did not mention it.
I note also from Exhibit R5, an ‘Employment Standards Committee Record’, dated 30 August 1993, (three years following the 1990 wrongful arrest), that Mr Campbell was assessed as being ‘one of the highest performers’ and that he had an excellent reporting history overall.
Exhibit R6, the document headed ‘Application for Discharge on Request’ dated 9 November 1994, indicated that Mr Campbell requested discharge due to a restructure, which appeared not to provide him a position in the finance area of his preference. I am satisfied that the application for discharge was not as a result of the 1990 wrongful arrest.
Exhibit R7 records that Mr Campbell re-applied to the RAAF in 1996, where a document dated May 1996 records that: Although member discharged from the RAAF due to the CLK amalgamation – he has obviously reconsidered … Recommended. The report also recorded in regard to his performance: Very good to almost always outstanding. Mr Campbell was Recommended subject to medical fitness.
Mr Campbell’s second attempt to re-enlist is recorded at Exhibit R8, the ‘Interviewing Officer’s Report’ dated 25 May 2001 which recommended his appointment. Ms Kristen Rees, the psychologist who interviewed Mr Campbell in connection with his application to re-join the RAAF on 24 May 2001 (Exhibit R3), considered him in a very positive light. She mentioned the Dapto assault, and reported that Mr Campbell stated his PTSD had fully resolved. Ms Rees opined that Mr Campbell had dealt with the PTSD, and noted that it no longer impacted upon him. She considered him to be a team oriented person, and found no areas of concern. She did not mention the 1990 Glenbrook false imprisonment.
I am satisfied then, to conclude that Mr Campbell did not suffer long term effects of the arrest incident, whereas he was still suffering symptoms of anxiety which he reported to doctors up to seven years following the motor vehicle accident. He continued to refer back to the effects of the motor vehicle accident, such as nervousness when driving.
I am satisfied however, from the medical evidence that the Dapto Leagues Club incident in 1993 on balance caused further PTSD.
I accept that Dr Durrell who saw Mr Campbell on four occasions in 2014, held that the Veteran presented with signs and symptoms of psychopathology to satisfy DSM-V in regard to Generalised Anxiety Disorder (GAD) of moderate severity following the 1990 Glenbrook abuse incident. He opined: I did identify persistent and disabling features of a GAD type mental injury caused by the Glenbrook abuse incident.
THE STATEMENTS OF PRINCIPLE
The Tribunal must apply section 120B of the Act in coming to its decision. That entails deciding matters to its reasonable satisfaction in accordance with the Statements of Principle (SoPs) issued by the Repatriation Medical Authority. The SoPs set out the factors relating to service that must exist in order to establish a causal connection between particular diseases, injuries or death and service. The relevant SoPs in this case are for Depressive Disorder, No. 28 of 2008 as amended by No. 41 of 2010, in particular factors 6(a)(i), 6(a)(ii) and 6(a)(v). The current SOP for Depressive Disorder is No.84 of 2015. The relevant SoP for Anxiety Disorder is No. 102 of 2007 as amended by No. 43 of 2010, and No. 103 of 2014. The relevant SoP for PTSD is No. 83 of 2014.
I am satisfied from the medical evidence above, that Mr Campbell did not suffer PTSD as a result of the 1990 false arrest incident. I accept he suffered PTSD, now at least in partial remission, following the 1976 motor vehicle accident, and the 1993 Dapto assault, which were not service related. Accordingly, the SoP for PTSD is not applicable in this case.
None of the doctors involved in this matter apart from Associate Professor Davies, who saw Mr Campbell in 2011 and 2012, diagnosed him as suffering from moderate depressive illness which appeared to him to have its origin in both the death of his partner in the motor vehicle accident, and his 1990 wrongful arrest at the RAAF.
In considering the SoP for Depressive Disorder, No.28 of 2008, I have considered the factors which could be relevant before it can be said that, on the balance of probabilities, the Depressive Disorder is connected with the circumstances of a person’s relevant service. Factor 6(a) for Depressive Disorder not otherwise specified, Factors 6(a)(i), 6(a)(ii) and 6(a)(v) could be relevant. The Factors in No. 84 of 2015 are 9(1)(a), (b), (e).
Factor 6(a)(i) states that a person must have experienced a category 1A stressor within the two years before the clinical onset of depressive disorder, and factor 6(a)(ii) experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder. Factor 6(a)(v) deals with a person experiencing a category 2 stressor within the six months before the clinical onset of Depressive Disorder. The factors in No. 84 of 2015 are 9(1)(a), (b), (e) are similarly expressed and would not impact differently upon Mr Campbell’s situation.
The SoPs No. 28 of 2008 (Depressive Disorder) and No. 102 of 2007 (Anxiety Disorder) stipulate that a category 1A stressor means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
Both SoPs stipulate that a category 1B stressor means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties.
No claims were made in regard to category 1B stressors, and I am satisfied they do not apply in this case.
Dr Durrell diagnosed Mr Campbell as suffering GAD as a result of the 1990 false arrest, and opined that he suffered the onset of his GAD symptoms immediately following the wrongful arrest. Dr Durrell identified Mr Campbell suffering a category 1A stressor in being held captive. I prefer the submission of the Respondent that Mr Campbell’s circumstances do not come within the terms of a Category 1A stressor. The word captive suggests an incident outside the legal arena, rather than an arrest and imprisonment.
I also prefer the contemporaneous reports in 1990/1991 which indicate no diagnosis was made when Mr Campbell attended at doctors and psychologists following the wrongful arrest in 1990. Any ongoing anxiety he was reporting between 1981 and 1983, was by his own description related to the motor vehicle accident. Mr Rees reported on 18 October 1991 that he had seen Mr Campbell on two occasions before the hearing of charges against him by the RAAF, and once on 11 February 1991, approximately two weeks after the hearing. Mr Rees noted that before the hearing, Mr Campbell presented with above average anxiety due to [the] impending charges, and that all matters were resolved in his favour. The record indicates that Mr Rees did not see Mr Campbell again once he had recorded that the matters had been resolved in his favour after 11 February 1991. Mr Rees had observed: … he seems motivated to continue with a career in the Airforce. I have noted that he applied to re-join the RAAF in 1996 and 2001, and that a document dated May 1996 records that: Although member discharged from the RAAF due to the CLK amalgamation – he has obviously reconsidered … Recommended. The report also recorded in regard to his performance: Very good to almost always outstanding. Mr Campbell was Recommended subject to medical fitness.

Mr Campbell’s second attempt to re-enlist is recorded in the ‘Interviewing Officer’s Report’ dated 25 May 2001 which recommended his appointment. Ms Kristen Rees, the psychologist who interviewed Mr Campbell in connection with his application to re-join the RAAF on 24 May 2001 (Exhibit R3), considered him in a very positive light. She mentioned the Dapto assault, and reported that Mr Campbell stated his PTSD had fully resolved. Ms Rees opined that Mr Campbell had dealt with the PTSD, and noted that it no longer impacted upon him. She considered him to be a team oriented person, and found no areas of concern. She did not mention the 1990 Glenbrook false imprisonment.
Ms Jill Farrelly (1993/1994) and Ms Anita Duffy (1993) did not make mention of the 1990 incident in their reports, and I am satisfied to conclude, therefore, that its impact had been reduced or had resolved by the time he saw them to the extent Mr Campbell did not mention the incident.
I am content, then, to conclude that Mr Campbell did not suffer long term effects of the arrest incident, and that in any case, he did not experience either a category 1A or 1B stressor arising from the wrongful arrest incident.
I have also considered Factor 6(a)(iv) which refers to experiencing a category 2 stressor within the six months before the clinical onset of anxiety disorder.
A category 2 stressor is defined as follows:
“a category 2 stressor” means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
...
(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
…
Mr Campbell experienced serious legal issues in 1990, which come within the description in paragraph (d) and, in relation to the same issues, concerns in the work environment in paragraph (c). However, I am satisfied, as submitted by the Respondent, that the history does not show that the effects of the legal issues/work environment are chronic in nature and cause the person to feel on-going distress, concern or worry. There were no references to the legal issues between 1991 and 2011. As already stated above, in 1993, the Employment Standards Committee said Mr Campbell was one of the highest performers. He left the RAAF because a restructure did not provide him with work in his favoured area, being finance. As already stated he attempted to re-enlist in 1996 and 2001. In 2001, he said he was missing the services and had thoroughly enjoyed his time in the RAAF. He was described by a psychologist, at that time, as a mature, resilient, team oriented person, with no areas of concern.
Accordingly Mr Campbell’s claim does not meet the tests in the relevant SoPs, and his claim cannot succeed. The SoPs are not satisfied and any psychiatric condition he suffers is not defence-caused. The decision of the VRB in regard to any psychiatric illness is affirmed.
DECISION
The Tribunal notes the concession of the Repatriation Commission, and sets aside the decision of the Veterans’ Review Board which held that Mr Campbell’s osteoarthrosis of both feet and both knees is not defence-caused. In substitution, the Tribunal finds that the Veteran’s osteoarthrosis of both feet and knees is defence-caused with effect from 23 August 2011.
The decision of the Veterans’ Review Board with regard to Mr Campbell’s psychiatric conditions is affirmed.

I certify that the preceding 77 (seventy - seven) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
........................[sgd]............................................
Associate
Dated 18 August 2015

Date of hearing 12 May 2015

Solicitors for the Applicant Mr G Kolomeitz, Glenn Kolomeitz Lawyers

Advocate for the Respondent Mr K Rudge, Department of Veterans' Affairs

[2015] AATA 605

18 August 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Division	VETERANS' APPEALS DIVISION
File Numbers	2013/5883-5884
Re	Andrew Campbell
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	18 August 2015
Place	Sydney

Date of hearing	12 May 2015
Solicitors for the Applicant	Mr G Kolomeitz, Glenn Kolomeitz Lawyers
Advocate for the Respondent	Mr K Rudge, Department of Veterans' Affairs