Clarke and Repatriation Commission
[2003] AATA 1180
•21 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1180
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/248
VETERANS' APPEALS DIVISION ) Re NEVILLE ALFRED CLARKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal P. J. Lindsay Date21 November 2003
PlaceSydney
Decision The decision under review is varied by finding that the applicant suffers from PTSD, but the decision is affirmed in all other respects.
(sgd) P. J. Lindsay, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – eligible war service – motor vehicle accident - whether accident a traumatic event - diagnosis of applicant’s psychiatric symptoms – whether applicant’s condition connected to eligible war service – diagnosis varied but decision otherwise affirmed.
Veterans’ Entitlements Act 1986 ss. 9, 120, 120B, 196B
Repatriation Act 1920 s.107M(2)Repatriation Medical Authority Statements of Principles:
- Instrument No. 4 of 1999 concerning Post Traumatic Stress Disorder
- Instrument No. 16 of 1994 concerning Post Traumatic Stress Disorder
Repatriation Commission v Hill [2002] FCAFC 192
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Budworth (2001) 66 ALD 285
Holthouse v Repatriation Commission (1982) 1 RPD 287
Comcare v Mather (1995) 56 FCR 456Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Re Winship and Repatriation Commission (1990) 20 ALD 101
Commonwealth v Wright (1956) 96 CLR 536
Repatriation Commission v Law (1980) 31 ALR 140
Re Wootton and Repatriation Commission (1992) AAT No. 7969
Roncevich v Repatriation Commission [2002] FCA 1458
Roncevich v Repatriation Commission [2003] FCAFC 146
Jamieson v Repatriation Commission (1984) 2 FCR 311REASONS FOR DECISION
21 November 2003 P. J. Lindsay, Senior Member 1. Neville Clarke (the applicant) has applied under the Veterans’ Entitlements Act 1986 (the Act) for a review of the decision made by the Repatriation Commission (the Commission) on 24 February 2000 to refuse his claim for pension in respect of post traumatic stress disorder. The Veterans’ Review Board (the Board) affirmed the decision on 16 November 2000.
2. At the hearing, Mr B Winship, solicitor, appeared for Mr Clarke. The Commission was represented by Ms T McConnell from the Department of Veterans’ Affairs (the Department). Mr Clarke gave evidence at the hearing. The tribunal heard evidence from consultant psychiatrists Dr Horden and Dr Haik under the tribunal’s procedure allowing for experts to present their evidence concurrently. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing.
background
3. Mr Clarke served as a cook’s assistant in the Royal Australian Air Force (RAAF) from 26 December 1944 to 1 August 1946. He did not serve overseas. His service was a period of eligible war service but not operational service.
4. Mr Clarke’s initial entrance Medical Board examination on 2 June 1943 was routine apart from the notation that Mr Clarke was a stutterer, which was a “marked impediment” (T3-13) and before enlistment, he was to be reviewed as to the stuttering. The subsequent examination on 11 December 1944 found “stuttering now acceptable” (T3-9).
5. On 29 July 1946 Mr Clarke signed a statement on discharge that he was not suffering from any disease or injury suffered while a member of the RAAF (T3-5).
6. On 10 September 1999 Mr Clarke lodged a claim for disability pension claiming that he suffered from post traumatic stress disorder (PTSD). He stated that a “two car collision and 4 died as a result” during service caused, contributed to or aggravated the condition (T8-35). Mr Clarke noted that he first became aware of the disability on 6 July 1946. His G.P. Dr Skow completed part of the claim form and provided a provisional diagnosis of “1. Chronic anxiety illness, 2. Post traumatic stress disorder” (T8-35).
7. In assessing the applicant’s medical impairment due to PTSD, Dr Skow recorded the applicant’s regular attendance to obtain a script for nocte Ativan, noting that “he does not attend specifically complaining of PTSD symptoms” (T9-42). Dr Skow wrote in the section of the assessment form requesting manifest features of post traumatic stress disorder that he has observed: “- Sometimes displays mild pressured speech – though normal content. – Always appears anxious and moderately agitated, though is usually pleasant and co-operative. Fairly labile emotionally.” Dr Skow added “ … the main thing noticed by myself is that Neville is frustrated and disappointed that his ‘nerves’ have not been accepted as service-related” (T9-43).
8. Prior to the current application, Mr Clarke had requested a pension for his psychiatric condition. It is appropriate for the tribunal to set out the history in some detail. A claim was made in February 1967. On that occasion, Mr Clarke sought medical treatment and pension in respect of nerves, injuries to his right leg and broken teeth. Each of these conditions was claimed to be the consequence of a motor vehicle accident at Parkes, New South Wales, during 1945 (T4A-21). In support of the claim, Mr Clarke stated that he spent 2 to 3 months in hospital recovering from the accident. He stated that he first became aware of the symptoms associated with his nerves approximately seven years earlier, that is, around 1960 (T4A-21). The clinical history in support of the claim noted that Mr Clarke had lost about 1½ stone since his discharge from the RAAF, he had to give up his trade as a fitter, and he had taken a lot of tablets for his nerves. The Repatriation Department referred him to a psychiatrist. The psychiatric opinion of Dr Fischer (T4-20D) dated 2 March 1967 was that Mr Clarke did not suffer from a psychiatric disorder but from a condition diagnosed as Inadequate Personality. Symptoms were noted as getting worked up into a temper if chipped, sleeping only 5-6 hours and being easily put out. He had not lost time off work due to his symptoms. The doctor stated that “There was no evidence of anxiety, tension or depression or any other psychiatric disturbance.” Consequently, incapacity resulting from the applicant’s broken teeth was accepted, but the Department rejected liability for incapacity from Inadequate Personality and his varicose veins in the right leg as not being due to war service (T107). Soon after this decision in April 1967 Mr Clarke appealed in relation to the varicose veins condition, but was unsuccessful.
9. Mr Clarke took no action concerning the Inadequate Personality condition until August 1979 when he applied again for pension for his nervous condition and varicose veins. It was around this time that he was retrenched from a position at Kurnell oil refinery that he had held for approximately seven years (T4-17). Further psychiatric assessments were carried out due to the lapse of time since the application in 1967.
10. Dr Nasser, a psychiatrist, examined the applicant in March 1980 when the applicant was aged 53. Although Dr Nasser found him to be suffering from symptoms of a mild anxiety state, Dr Nasser agreed with the diagnosis of inadequate personality (T4-20). He found that the motor vehicle accident during service and the applicant’s inadequate personality interacted to produce his current condition, the accident’s contribution being assessed at ten per cent. It appears that a Dr Steele assessed Mr Clarke’s application on the papers without an examination. Dr Steele disagreed (T6-28) with Dr Nasser’s diagnosis. Dr Steele diagnosed an anxiety state and inadequate personality, the causes of which were constitutional and genetic. Dr Steele placed significant emphasis on the lack of evidence in the service records that anxiety arose at the time of the motor vehicle accident and that there was no evidence of anxiety state in 1967 or mention of anxiety in the early post war period (T91-302). Dr Steele considered the applicant’s anxiety symptoms were the result of the retrenchment, growing older and loneliness leading to the condition of ‘separation anxiety’.
11. Dr Gatenby, another psychiatrist, examined Mr Clarke in February 1981 and described his symptoms as being very edgy, quick tempered, increased sensitivity to noise and difficulty in controlling his aggressive feelings (T4-17). Dr Gatenby noted Mr Clarke’s insistence that his symptoms had increased during the previous three years. Mr Clarke was taking Serepax to help him sleep and he frequently had disturbed sleep. Dr Gatenby thought that any features of inadequacy of the applicant’s personality had been over-emphasised in the past and he considered him more compulsive and excitable and perhaps passive aggressive. Dr Gatenby diagnosed Mr Clarke’s condition as anxiety state that had been aggravated by the motor vehicle accident, and personality disorder.
12. There being a divergence of psychiatric opinion, the Commission referred the case to Dr Spragg, consultant psychiatrist, for assessment. Dr Spragg concluded in May 1981 that he could not agree with the diagnosis in 1967 of Inadequate Personality. Dr Spragg agreed with Dr Gatenby’s diagnosis because it was internally consistent. Dr Spragg diagnosed Anxiety Neurosis and agreed that the stuttering prior to enlistment was evidence of a personality weakness. Dr Spragg allowed that the motor vehicle accident may have been stressful and the applicant may have reacted abnormally to it. However, in the absence of complaint regarding the accident and the fact that Mr Clarke’s nervous condition was evident prior to enlistment, Dr Spragg could not put the accident’s impact any higher than that. In conclusion, Dr Spragg stated that any psychopathology that might have followed the motor vehicle accident would have been temporary, losing its effect in months because there was no evidence of further reinforcing episodes (T4-20B).
13. The Commission disallowed Mr Clarke’s appeal on 18 June 1981 (T7) on the basis of Dr Spragg’s opinion that service made no contribution to his anxiety neurosis, a diagnosis which included the underlying personality problem.
14. Subsequently, in May 1985, Mr Clarke made another claim for medical treatment and pension in respect of his nervous condition and varicose veins in his right leg (T68). The claim in respect of the nervous condition was refused in November 1985, the Commission stating that the effect of the motor vehicle accident on service was of a transient nature and not of significance in the development of his anxiety neurosis (T64-218). In a submission dated 20 January 1986 (T62-214) made in support of an appeal to the Board, Mr Clarke wrote that the motor accident was not of a minor nature and that it “ … brought about a personality change which has remained with me.” On 29 March 1988 the Board refused Mr Clarke’s appeal. The Board stated that it was reasonably satisfied that his anxiety neurosis was in part caused by the accident. The Board decided, however, that the accident was not related to service because the incident did not occur while the applicant was rendering operational service, as required by s.9(1)(a) of the Act stating that:
… the Act provides for liability in the Commonwealth for such an occurrence only where the incident happened while the claimant was rendering operational service.
Mr Clarke’s accident occurred during eligible service which was not operational service. (T59)
15. The current application before the tribunal relates to the claim for disability pension for PTSD made in September 1999. In assessing the claim, the Department arranged for Mr Clarke to be examined by Dr Hayes who examined the applicant on 7 December 1999 and provided a report dated 21 January 2000 (T13).
16. Dr Hayes recorded a history of insomnia and night sweats for at least twenty years. He noted that the applicant’s concentration is good but he has little appetite. He is markedly vigilant and has startled easily for about thirty years, and he referred to being mugged twice in the 1980s. Mr Clarke described intrusive memories of many events, which recur at least weekly. Dr Hayes was given an account of Mr Clarke’s involvement in a fatal car accident in 1945, when he was concussed and suffered a fractured leg. Three of four passengers were killed and the survivor later committed suicide. He had a vivid recall of the event and the headless bodies he witnessed. Mr Clarke described avoidance behaviour. Current affairs and news programs provoke memories of the car accident and the violent assaults. He remains a moderate drinker. He has been taking medication for his sleeplessness and anxiety since around 1975. Dr Hayes reported that Mr Clarke’s early years were not happy. He was emotionally and physically abused by his father. He did not do well at school, and had a stutter. After the war Mr Clarke drifted around the country for about twenty years. A combination of hearing problems and assaults led him to move to Ballina in 1986, where he has remained.
17. Dr Hayes concluded:
Mr Clark [sic] appears to have been traumatised by his severe road accident which he suffered in 1945. He suffered physical damage, some cosmetic injuries, and was emotionally traumatised. His symptoms are consistent with a diagnosis of PTSD. This led to a reduction in his social activity, and emotional distress. He travelled the country broadly, was irritable and unsettled. He probably drank alcohol to excess throughout this period.
His symptoms appear to have settled a little in the 60’s and 70’s, but escalated in recent years. This is the result of numerous factors including two further assaults in 1980, his hearing loss, and loss of regular employment. …
His PTSD is service related insofar as the accident occurred whilst he was in the RAAF. … His PTSD may well have had a significant impact on his subsequent lifestyle, resulting in isolation and lifelong bacherlorhood. To an extent this remains conjecture. (T13)
18. There is a file note of discussions on 8 and 17 February 2000 (T10) between Dr N Zwartrzka, a Departmental medical officer, and Dr Hayes. According to the file note, it was apparent from Dr Hayes’ clinical notes that Mr Clarke’s account of the motor vehicle accident and its aftermath resulted in his being an in-patient for six months and requiring treatment for injuries to his right leg and face. However Dr Zwartrzka pointed out to Dr Hayes that, from information the Department held, the accident caused mild concussion and loosening of teeth and only a two week stay in hospital. In view of the discrepancy in the history, and noting that Mr Clarke told him of flashbacks of the incident and injuries, Dr Hayes felt he could not form a diagnostic opinion. Accordingly, Dr Hayes was noted as withdrawing his diagnosis of PTSD or psychiatric condition.
19. The Commission refused the claim on the basis that the applicant’s condition, considered by the Commission to be anxiety disorder, did not result from the motor vehicle accident as claimed. The connection between the accident and service was seen as temporal only since it happened while Mr Clarke was off duty and travelling in a private motor vehicle (T2-2A). On 16 November 2000 the Board affirmed the decision.
20. As the claim relates to eligible war service service not being operational service, the tribunal is required to decide the matters raised in Mr Clarke’s application to its reasonable satisfaction: s.120(4) of the Act. Since the claim for the pension was lodged after 1 June 1994, s.120B applies. Subject to determining whether Mr Clarke suffers from PTSD or some other psychiatric condition, s.120B(3) requires the Tribunal to be reasonably satisfied there is material that raises a connection between the disease and service, and that a Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA) upholds the contention that the disease is, on the balance of probabilities, connected with his service. The relevant SoP in force concerning PTSD is Instrument Number 4 of 1999 which reads as follows:
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or …
The SoP (as amended) contains the following definition:
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
evidence
21. Mr Clarke said he enlisted to get away from his father whom he hated. He used to receive many beltings from his father, often he thought for no reason. He left school aged 13 and was 18 when he joined the RAAF on 26 December 1944. After initial training he was posted to the RAAF base at Parkes.
22. He recalled that there was a rumour that some of the personnel at the base were to be transferred to Borneo. With others from the base, Mr Clarke decided to go into Parkes to a hotel and take the opportunity to enjoy some beer prior to the possible transfer. He recalled catching a bus into town around 5.00 on a Saturday afternoon with about five other servicemen, all in uniform. At the hotel, he was part of a group of civilians and service personnel. He hoped to catch a bus back to the camp leaving at 6.30pm, but he missed it. His evidence was that the leave pass allowed him to stay in town overnight if he wished. He said he was not required back at camp until the Sunday afternoon when he was on duty again. In cross-examination he said he thought his next shift started at 3pm on the Sunday. He was required to attend at the cookhouse at the start of his mess shift. His evidence to the Board, however, was that he had to be back at camp by 6pm on Saturday (Exhibit R3).
23. Mr Clarke and another serviceman accepted a ride back to base around 7pm on Saturday. He said they travelled in a civilian’s car with three or four other civilians. He sat in the front seat. As the car went over the crest of a hill, Mr Clarke recalled seeing the head lights of an oncoming car and then there was a collision. He said four of the civilians in his car were killed in the accident. He remembered blood and debris around the accident scene and the arrival of an ambulance. He said he climbed out of the wrecked car and had to step over a headless body. He thought he spent two weeks in hospital in Parkes where he received treatment for a fractured right leg, fractured jaw and concussion. Mr Clarke said he was then moved to the hospital on the base for possibly five to six weeks. Mr Winship asked the applicant if he was making up any of his recollection of the accident. Mr Clarke denied he was making it up. He said that ever since, he has regretted staying at the hotel and drinking for too long because the accident changed the course of his life.
24. A statutory declaration made on 14 August 1979 by Noel Herbert Hurst, a former colleague of the applicant’s at the Parkes RAAF camp, is set out at T5. Mr Hurst stated that Mr Clarke was returning to the camp after leave in late June or early July 1946 when the applicant was injured in a motor vehicle accident. Mr Hurst stated that he visited Mr Clarke in the Parkes District Hospital and that he was admitted with extensive facial injuries, broken teeth and a nervous disorder.
25. In cross-examination Mr Clarke agreed that a report in the Parkes Champion Post newspaper dated 8 July 1946 (Exhibit R8) referred to the accident in which he was injured. The account in the Champion Post, stated that five people were injured on 6 July 1946 in “a spectacular motor accident … Both cars were badly damaged and two of the injured persons admitted to hospital. The smash, which took place at about 7pm on Saturday, was heard over a large area and a crowd quickly gathered.” One of the cars was reported to have been a write off. There was no mention of any fatalities. The report noted that two members of the RAAF were injured and one was admitted to the service hospital. Mr Clarke also agreed that his RAAF medical documents (T3-7) recorded his admission to the base hospital on 6 July 1946 from Parkes District Hospital and that he was suffering from concussion, abrasions and loosened lower teeth. The documents show that he was transferred from the base hospital to Parkes District Hospital on 8 July 1946 and that he was discharged fit for duty on 20 July 1946 and his condition on discharge was recorded as “reasonably good” (T115-381). Mr Clarke agreed that on 29 July 1946 he signed his discharge medical documents, stating that he did not suffer from any disability or injury (T3-5).
26. Mr Clarke said that he has always been worried about things. More recently he has worried about being mugged again. He said that he had a stutter during his school days and he would be laughed at and bullied about it. He said he lost the stutter after enlisting in the RAAF.
Dr Hordern
27. Dr A Hordern, consultant psychiatrist, interviewed Mr Clarke on 4 October 2001 and provided the applicant’s solicitors with a report dated 13 November 2001 (Exhibit A1). The history referred to the motor vehicle accident on 6 July 1946, Dr Hordern noting that the applicant was vague about the details. Mr Clarke described a harsh upbringing, which included poverty, isolation and frequent beltings by his father. He was very close to his mother and his siblings. He was born left handed but was made to use his right hand at school. This caused him some distress. He stuttered a great deal and was unable to mix freely. He was eneuretic until age 18. He described being nervous and jumpy following the accident and since then has been not free from psychiatric symptoms. Mr Clarke believed his symptoms have become worse in recent years.
28. Mr Clarke told Dr Hordern that while he does not suffer much depression, he has had difficulties getting to sleep for a long time. He has some nightmares about motor vehicle accidents and intrusive recollections of the accident 2-3 times a week. He avoids night driving because he sometimes gets flashbacks of the accident. Dramatic material on television, including news reports of disasters, cause him distress, and palpitations at times, so he tries to avoid such programs. Mr Clarke told him that the accident was an unexpected event which induced feelings of terror and hopelessness. Dr Hordern observed that earlier diagnoses of inadequate personality were founded on an inaccurate history, ie. a happy childhood. Mr Clarke’s answers to direct questions regarding the diagnostic criteria for PTSD led Dr Hordern to make a diagnosis of PTSD, the symptoms of which have worsened since 1980. Dr Hordern concluded that the applicant had long suffered from a chronic PTSD. He discounted seeming inconsistencies and exaggerations given to doctors over the years and would regard them, if anything, as hysterical overlays. In his opinion Mr Clarke’s symptoms and disabilities are genuine.
Dr Haik
29. Dr R Haik, consultant psychiatrist, provided the Commission with a report dated 30 August 2001 (Exhibit R2) of his interview of the applicant. Dr Haik made a diagnosis of life-long Avoidant Personality Disorder.
30. Dr Haik noted Mr Clarke’s current symptoms as a startle reaction and a nervous condition that can bring on eczema. There was no mention to him of recurrent dreams about the car accident or persistent avoidance of car travel.
31. Dr Haik observed a number of discrepancies between the history he received about the motor vehicle accident and that given to other doctors. Dr Haik recorded that Mr Clarke was the only survivor. His injuries, fractured left leg and jaw and broken teeth, required hospitalisation for three months. Dr Haik highlighted the implausibility of the applicant having sustained these fractures shortly before discharge from the RAAF, yet there was no record of them in his discharge documents. Dr Haik observed that Mr Clarke did not seek treatment for his nerves following discharge and did not raise it with the Department until 1967 when seeking a pension.
32. Mr Clarke’s post war employment took him through a succession of jobs in remote parts of the country. Mr Clarke has never married, although he has had close female relationships, including sexual relationships. Dr Haik explained that such a work history and restraint in intimate relationships were due to Mr Clarke’s avoidant personality. Dr Haik thought that the diagnosis of inadequate personality made by Dr Fischer in 1967 was substantially similar to his, as that diagnosis was the diagnostic forerunner to avoidant personality disorder. Dr Haik ruled out a diagnosis of either PTSD or generalised anxiety disorder because there was no evidence of Mr Clarke having suffered a severe psycho-social stressor.
Concurrent evidence
33. In summary, after Dr Hordern and Dr Haik presented their oral evidence concurrently and questioned each other about their diagnoses, they simply had to agree to disagree.
34. Of particular significance to Dr Hordern was the applicant’s vulnerable personality. The tribunal accepted in evidence (Exhibit A4) a paper written by Dr Alexander C McFarlane ‘The Aetiology of Post-traumatic Morbidity: Predisposing, Precipitating and Perpetuating Factors’ (British Journal of Psychiatry (1989), vol 154, 221-228). Dr Hordern referred to the paper as supporting his opinion that neuroticism is a better predictor of PTSD than the intensity of the disaster. Dr Hordern observed that PTSD is a diagnosis that psychiatrists have made only since the disorder was recognised in Diagnostic and Statistical Manual of Mental Disorders, Third Edition published in 1980. He emphasised that Dr Haik, and indeed none of the other examining psychiatrists, had taken an adequate family history. He, however, noted that Mr Clarke had a poor relationship with his father, an unhappy childhood due to being teased and bullied, he had difficulty in mixing readily, and he became withdrawn after the sudden death of his loving mother at age 18, not too long before his accident. Dr Hordern thought Mr Clarke had a number of early neurotic traits: being naturally left-handed but forced by school to use the other hand (a “shifted sinistral”), he used to twist his hair, his stuttering and his bed-wetting that continued until he was 18. He was thus predisposed to PTSD, brought on by the trauma of the car accident, with delayed onset in the last few years although he noted that Mr Clarke has had anxiety symptoms as far back as 1967 when he was examined by Dr Fischer and has been taking minor tranquillisers for many years.
35. Dr Haik, however, did not agree that the car accident was an horrific trauma but merely a moderate accident. It was unlikely to have been sufficiently traumatic to lead to any PTSD. Moreover Dr Haik did not accept that stuttering was a form of neuroticism. In response to Dr Hordern’s point that PTSD was not formally diagnosed until around 1980, Dr Haik stated that the equivalent diagnosis at the time would have been transient situational disturbance, a diagnosis not made by any psychiatrist who had examined the applicant. Dr Haik thought the applicant’s reference to fatalities, his description of his own injuries and the duration of his hospitalisation demonstrated such a degree of embellishment as to evidence his inadequate personality. To talk up incidents with pseudologica fantastica, he opined, is consistent with a man who has a sense of inadequacy. Dr Haik said that even had he taken the same history as Dr Hordern of an unfortunate upbringing, he would still diagnose avoidant personality disorder. Any anxiety the applicant has suffered has been provoked by his personality disorder which he developed because of his less than ideal upbringing.. Nothing in Mr Clarke’s service had precipitated development of the avoidant personality disorder. Dr Hordern disagreed with that diagnosis and referred to the diagnostic criteria for avoidant personality disorder in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). He thought the diagnosis was not made out because Mr Clarke has not avoided work or school activities and there was no evidence that he was pre-occupied with being criticised or rejected in social situations. His remaining a bachelor did not necessarily mean he was abnormal. His occupational history was explained largely, in Dr Hordern’s view, by the applicant having left school at 13, and he demonstrated courage by volunteering for the RAAF at 16, being turned down but trying again.
36. An extract from the ‘Index and Glossary of Mental Disorders’ published by the National Health and Medical Research Council (Australian Government Publishing Service, Canberra, September 1972) was accepted in evidence (Exhibit R9). The diagnostic term therein ‘Asthenic personality disorder’ is defined as “ Characterised by inadequate response to intellectual, emotional, social and physical demands. Such individuals are generally unable to adapt to specific situations such a marriage, home life or occupation, and exhibit lack of self-confidence, indecisiveness and emotional dependency.” Dr Haik presumed that Dr Fischer’s diagnosis of inadequate personality was a diagnosis of asthenic personality disorder. Dr Hordern disputed the diagnosis because it will apply to someone who cannot cope, yet he pointed to Mr Clarke having been gainfully employed despite his handicaps.
37. Given the variance in the symptoms that Mr Clarke described to each of them, Dr Haik asked Dr Hordern whether he felt the applicant must have fabricated his symptoms. Dr Hordern thought that was not probable. Dr Hordern said he would diagnose PTSD even if the applicant had spent only a fortnight in hospital, and not the exaggerated periods stated to other doctors.. Dr Haik doubted whether Mr Clarke suffered from any disabling symptoms.
findings and consideration
38. There is a preliminary issue in this matter as to the diagnosis of Mr Clarke’s psychiatric condition. The Tribunal must initially address the question whether Mr Clarke suffers from a disease and, if so, what disease: Repatriation Commission v Hill [2002] FCAFC 192 at [61]. The Tribunal’s function in this regard has been described by the Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 34 AAR 270 as follows (at 283):
The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or illness, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s.120(4).
39. In characterising the symptoms, the Tribunal is to:
… identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional label to the collection of symptoms. … Once the decision maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s.120(1) as qualified by s.120(3): Repatriation Commission v Budworth (2001) 66 ALD 285, 292.
40. Moreover, it is quite clear from Benjamin (at 280) that “SoPs are not relevant to the question of diagnosis”.
41. The tribunal is reasonably satisfied that a diagnosis of avoidant personality disorder is not appropriate. DSM-IV states that the “[t]he essential feature of Avoidant Personality Disorder is a pervasive pattern of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation that begins by early adulthood and is present in a variety of contexts.” (at 680). Among the early psychiatric opinions, only Dr Fischer failed to record symptoms of anxiety or tension, despite Mr Clarke’s statement of February 1967 referring to a recent deterioration in his nervous condition and attributing his symptoms to the motor vehicle accident in July 1946. The tribunal accepts Dr Spragg’s criticism of Dr Fischer’s report that it was “totally inadequate” as it appears that the applicant was not asked about the car accident. Nevertheless, the tribunal notes that in coming to his opinion that Mr Clarke did not suffer from any psychiatric disturbance, Dr Fischer did not record any symptomatology that would satisfy the diagnostic criteria for avoidant personality disorder. Indeed he recorded that Mr Clarke had not lost work due to a psychiatric condition and had worked a lot of overtime..
42. Dr Nasser, Dr Steele and Dr Gatenby diagnosed an anxiety condition in conjunction with a personality disorder. Dr Spragg made a diagnosis of anxiety neurosis, though in his opinion the contribution thereto of the car accident was only temporary. However, both Dr Spragg and Dr Gatenby thought previous assessments had over-emphasised features of inadequate personality. The tribunal accepts Dr Hordern’s opinion that, as the applicant has had many friends, kept himself in work over the years and not expressed feelings of social rejection apart from a regret about not having married, the diagnostic criteria for avoidant personality disorder are not satisfied.
43. Of the recent psychiatric opinions, only Dr Haik rejected a diagnosis of an anxiety state. PTSD is one of a catalogue of anxiety disorders appearing in DSM-IV. The tribunal is mindful of Dr Hayes’ retraction of his diagnosis of PTSD after he was informed that the length of the applicant’s hospitalisation was shorter than he had been led to believe and his injuries were not as severe as reported. The applicant’s embellishing his history is dealt with further below.
44. The tribunal finds that Mr Clarke has experienced various symptoms of anxiety for many years. His nerves were such that by 1967 he had to give up his trade and he had lost considerable weight since his discharge. He was taking many tablets for his nerves (T4A). By 1980 he was recording a high level of irritability, chronic worry and inability to sleep. In 1981 he was edgy, quick tempered, sleeping poorly and having dreams, and had been taking Serepax continuously for over two years. More recently, his symptoms have been recorded as including a startle reaction, not driving at night, restlessness, sleeping with the light on, dreams about life events including car accidents and intrusive thoughts about the accident in 1946, and aversion to television programs depicting disasters.
45. While it may be accepted that Mr Clarke has elaborated about the car accident on the Molong Road on 6 July 1946 regarding fatalities and headless bodies, a finding based on the research of Mr O’Keefe (exhibit R4) and Ms Carter (exhibit R5), the tribunal is satisfied that it was a serious accident. The newspaper reports called it a “spectacular motor accident” in which both cars were badly damaged and five people were injured. The noise of the impact was widely heard and a crowd gathered. Hospital treatment was required for two of the injured, one being Mr Clarke, who was concussed, suffered loosened lower teeth and abrasions.
46. It was observed in Benjamin that there was “no practical consequence whatsoever” (at 280) in any difference between the definition of ‘post traumatic stress disorder’ in SoP 15 of 1994 concerning PTSD and in DSM-IV. The Tribunal notes that the definition of ‘post traumatic stress disorder’ is the same in SoP 4 of 1999 and SoP 15 of 1994, both being Statements of Principles concerning PTSD. It is appropriate, therefore, for the Tribunal to refer to clause 2(b) in SoP 4 of 1999 which defines ‘post traumatic stress disorder’ to mean:
a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
47. The tribunal is satisfied that the accident was a traumatic event. Mr Clarke’s evidence about the car accident was that he cannot forget the headlights of the oncoming car. He told Dr Gatenby that while in hospital, he screamed out and demanded that the light be kept on all night. He told Dr Hordern that he felt helpless and terrified. Mr Clarke experienced something that threatened him with death or serious injury. The tribunal accepts this evidence and finds that Mr Clarke’s response was one of intense fear and helplessness.
48. Dr Haik suggested that the reason why Dr Hordern recorded Mr Clarke as experiencing a number of symptoms of PTSD, whereas he did not, was because he did not specifically refer to the diagnostic criteria in his questions. Thus, Dr Haik said he did not invite or suggest answers. However, this overlooks the history and description of symptoms given to Dr Hayes. Both Dr Hayes and Dr Hordern obtained a history of Mr Clarke having intrusive memories about the accident, at least twice weekly. Dr Hordern suggested that any embellishment by the applicant, which he termed an hysterical overlay, is a case of an uneducated person’s attempt to satisfy questions put to him by doctors and others. The study by McFarlane found that a person’s perception of the threat and loss sustained can often have little to do with the actual experience. The tribunal does not consider that Mr Clarke’s elaboration of what he recalled at the accident scene – fatalities and a headless body - was more than an hysterical overlay. It is a situation that, as Dr Hordern remarked, requires the exercise of clinical judgment. The tribunal accepts Dr Hordern’s view that Mr Clarke was attempting to make the accident seem more interesting but not to deceive. Dr Hayes’ later retraction of his diagnosis of PTSD, which a departmental file note by Dr Zwartrzka ascribed to an exaggerated account of the car accident, injuries and consequent treatment, must be taken into account against the background of Dr Hordern’s explanation for the hysterical overlay. On balance, the tribunal finds that the accident was a traumatic event.
49. Mr Clarke re-experiences the accident through his memories and is caused distress by cues, such as violent television programs or news of disasters. Based on the history of symptoms obtained by Dr Hayes and Dr Hordern, the tribunal is reasonably satisfied that Mr Clarke avoids thoughts about the accident by not watching violence on television. Mr Clarke told the tribunal that even though he still drives, and sometimes quite long distances, he will not drive at night. He explained that he relates this to his accident rather than failing eyesight. In addition, Dr Hordern thought Mr Clarke described avoidance behaviour, and noted some selective amnesia and some detachment from others. It was Mr Clarke’s evidence that he first developed sleeping problems following the accident. For many years he has taken medication such as Serepax to help with his anxiety symptoms, and in addition, sleeping tablets.
50. Dr Hordern noted symptoms of hyperarousal including a startle response. Mr Clarke described being unsettled in his life following discharge and he attributed his increased nervousness to the aftermath of the accident. The tribunal is reasonably satisfied on this material that Mr Clarke has had persistent symptoms of increased arousal beyond the level of any nervousness that he had before the accident. His disturbed behaviour – getting easily worked up into a temper at work and difficulty controlling his aggressive feelings - has been recorded by a number of psychiatrists, including Dr Gatenby and Dr Nasser, and as far back as 1967 by Dr Fischer. The irritability and anger has caused Mr Clarke distress in occupational settings. In this context, the tribunal also notes that Dr Gatenby recorded that the applicant was compulsive and obsessive about the need for work so as to reduce his anxiety. The tribunal is satisfied, therefore, that there is evidence satisfying the criteria for diagnosis of PTSD. The tribunal prefers the opinion of Dr Hordern and notes his statement that “Mr Clarke’s PTSD resulted from his involvement in a horrendous motor vehicle accident in July 1946 whilst he was serving in the RAAF at Parkes, NSW” (Exhibit A1).
51. Mr Clarke’s PTSD must be related to his eligible war service. This is clear from factor 5(a) of the SoP. This requirement derives from s.13 of the Act that provides that eligibility for a pension depends upon the veteran’s incapacity being from a war-caused disease. Whether a disease is ‘war-caused’ is determined by s.9 of the Act. That this is the correct approach has been established by Mansfield J in Roncevich v Repatriation Commission [2002] FCA 1458 (endorsed by majority in Roncevich v Repatriation Commission [2003] FCAFC 146):
[28] … the relevant SoP leaves open the factual question whether the factor found to exist and upon which, on the balance of probabilities, the left knee injury can be service related is in fact service related. … Clause 4 of the relevant SoP provides that at least one of the factors set out in cl 5 (in this instance, direct trauma to the left knee) “must be related to any relevant service rendered by the“ applicant. It leaves that question of fact to be determined. Section 196B(14) then explains what is meant by that expression. It is expressed in terms which then require consideration, in this instance, of s.70(5)(a) and s.70(5) (c) and (7).
In this matter, s.9(1)(b) is equivalent to s.70(5)(a), s.9(1)(d) to s.70(5)(c), and s.9(2) to s.70(7). Section 9(1)(c) is equivalent to s.70(5)(b).
52. Relevantly s.9 provides:
(1) Subject to this section, 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;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(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;
…
(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.
…
53. The tribunal is mindful that Mr Clarke gave his evidence to the best of his recollection about events, being the circumstances of his visit to the hotel and the car trip back to the camp, that occurred almost sixty years ago. There was no written material before the tribunal, such as Mr Clarke’s leave pass, that would assist in coming to a view about the type and duration of leave that Mr Clarke had been granted.
54. His evidence to the tribunal was that he was on leave when he left the camp at around 5pm on the Saturday afternoon to go to a hotel in town. He thought he was not on duty again until the next day at around 3pm when his shift started. Unlike the other servicemen who went into town with him, Mr Clarke said his leave entitled him to stay in town, or elsewhere, overnight if he wished. He said he was not overly concerned at missing the bus that left Parkes at around 6.30pm because he was not on duty until the following day. His evidence to the Board was that he had to return to the camp by 6pm on Saturday. The tribunal finds, however, that his account given to the tribunal is more reliable. It is improbable that he would have been given leave for an hour between 5pm and 6pm. Further, had the leave been for an hour or so, disciplinary action against him for returning late from leave would be expected. At the Parkes camp, Mr Clarke had previously been disciplined and sentenced to fourteen days detention in September 1945 for improperly using transport and for making a false statement to an officer as to his mustering (exhibit R7). No action appears to have been taken in relation to breaching the conditions of his leave on 6 July 1946. Mr Clarke has said he was concerned about missing the last bus back to camp. But, noting his evidence at the hearing, the tribunal is satisfied that this relates more to subsequent regrets about what might have happened in his life had he not accepted the lift from the civilians. The tribunal finds on balance, therefore, that Mr Clarke’s leave was for 24 hours.
55. For s.9(1)(b) of the Act to apply, the accident, which is the traumatic event that in Dr Hordern’s opinion led to the delayed onset of the applicant’s PTSD, must have arisen out of or been attributable to Mr Clarke’s eligible war service. Mr Winship referred to a number of authorities that have examined the meaning of ‘injury’, as defined in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) as “ … a physical or mental injury arising out of, or in the course of the employee’s employment”. Mr Winship submitted that the applicant was on a period of authorised local leave at the time of the accident. He cited Comcare v Mather (1995) 56 FCR 456 where it was held that soldiers who were on authorised leave from the Kangaroo 92 exercise were injured in an interval within an overall period of work. In Mr Winship’s submission, Mr Clarke had been required to live in camp at the RAAF base outside Parkes and reside in accommodation there while performing service for the RAAF until his discharge. The time spent in camp constituted one overall episode of work rather than a series of episodes of work.
56. Ms McConnell contended, however, that the definition in the SRC Act had two limbs. One used the words “arising out of” and the other, “in the course of” employment. Mather and the earlier High Court decision Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 dealt with the temporal concept, in the course of employment, a concept that is absent from s.9(1)(b). A temporal test applies under s.9(1)(a) of the Act, but only where “ … an occurrence happened while the veteran was rendering operational service”. But Mr Clarke’s service was not operational service. The respondent further submitted that the overlapping of the concepts “in the course of employment” and “arising out of employment” related only to the extent and nature of ‘employment’, rather than whether an event was caused by or happened during the employment.
57. The tribunal accepts the respondent’s submission that Mather and Hatzimanolis are not directly relevant, being concerned with a different concept “in the course of employment”, that does not appear in s.9(1)(b). In interpreting s.9(1)(b), the tribunal is bound by the principle established in cases such as Holthouse v Repatriation Commission (1982) 1 RPD 287 where Davies J said (at 288):
The words '...has arisen out of, or is attributable to, ...' require there to be a causal connection between the defence service and the incapacity or death.
…
As Denning J said in Wedderspoon v Minister of Pensions, (1947) 1 KB 562 at 563-4 : 'The cases show that when the cause of the death or disablement lies in the man's own personal or domestic sphere, and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service.'
58. The tribunal is reasonably satisfied on the evidence before it, that the accident occurred while the applicant was travelling back to the camp in a civilian’s car. He had accepted a lift. At the time of the accident, Mr Clarke had permission to leave the camp. He was not required to be back at the camp on Saturday 6 July 1946, because he did not have to return to work as a cook’s assistant until the next day when his shift began at around 3pm. In applying the interpretation given by Davies J to the words “arose out of, or was attributable to, any eligible war service rendered by the veteran”, the tribunal finds that the accident was not caused by the applicant’s service. Mr Clarke visited the hotel for personal reasons and he accepted the lift back to camp for personal reasons. His service provided merely the circumstances in which the cause of the accident occurred, and thus the accident did not arise out of nor was it attributable to eligible war service. There must be a causal connection between the applicant’s war service and his accident for s.9(1)(b) to apply. The tribunal has found such a connection is missing.
59. The applicant also relied on s.9(1)(c) and Mr Winship contended that the applicant’s entitlement was not affected by s.9(5) because his journey back to the camp was not circuitous or broken. It was submitted that the accident happened while Mr Clarke was travelling to a place for the purpose of performing duty. In developing this argument it was further submitted that Mr Clarke, serving in the RAAF during World War II, was never off duty. But s.9(1)(c) stands in the way of that submission because it covers the situation where service personnel are not on duty. The provision reads “ … the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty … “. That is, despite the accident not occurring in the course of duty, a disease will be war-caused under s.9(1)(c) if the accident happened on a particular kind of journey. Additional support for rejecting the submission that Mr Clarke was always on duty may be found in Re Winship and Repatriation Commission (1990) 20 ALD 101, a case concerning a veteran on compassionate leave in April 1943 who visits his mother. In that case, Senior Member Allen pointed out that during World War II there were different legal concepts of being “on duty”.. Although service personnel were subject to military law at all times, this was a different concept from being on duty (at [23]).
60. The tribunal finds on the balance of probabilities that Mr Clarke had permission to leave the camp. In applying the distinction referred to in Re Winship, the tribunal accepts that while Mr Clarke was away from the camp he was not on duty, but was pursuing private activities. He was going into town to have a drink with some service personnel and civilians. The drinking was in a non service environment, unlike the NCO’s socialising with young members of his platoon on Christmas Eve, while they were on an overseas posting in Re Wootton and Repatriation Commission (1992) AAT No. 7969.
61. The tribunal is reasonably satisfied that Mr Clarke was not returning to camp for the purpose of performing duty, as is required by the first alternative in s.9(1)(c). In Jamiesonv Repatriation Commission (1984) 2 FCR 311, another case dealing with the Repatriation Act 1920, Fitzgerald J was concerned with a provision (s.107M(2)(a)) that referred to “(a) an accident that happened to the member while he was travelling to or from his place of employment on defence service …”. It is noted that, unlike s.9(1)(c), the provision does not refer to the purpose of the journey. His Honour said:
… an employee (or a member of the services) who resides at the place where he is employed will not be travelling to his place of employment if he left it for private purposes, is not returning from a period of even temporary residence elsewhere, and his immediate purpose for returning is that the place to which he is travelling is the place at which he resides. (at 317)
62. The applicant’s evidence was that he did not have to return to camp on the Saturday night and his leave permitted him to stay in town overnight. This evidence is consistent with his recollection that he was not due to commence his next shift in the cookhouse until 3pm on Sunday. The tribunal finds that the leave pass allowed him to be absent from camp until he was next required for duty. At the time of the accident, Mr Clarke was still participating in his private activities. The applicant’s evidence satisfies the tribunal that the lift back in the civilian’s car was to enable him to return to camp for his own private reasons not related to taking up duty. He left for the camp about 20 hours before his next shift was to start. The tribunal concludes that Mr Clarke’s purpose would have been to serve his own ends by returning to the camp to eat and sleep as permitted, but would not have been to perform duty there that night (cf. Commonwealth v Wright (1956) 96 CLR 536, per Kitto J at 562).
63. Finally, Mr Winship submitted that the accident was war-caused under s.9(2) of the Act because, but for Mr Clarke’s rendering service at the camp, the accident would not have occurred and his incapacity would not have been contracted. That is, s.9(2) would extend the operation of s.9(1)(b) by deeming incapacity from PTSD to be war-caused if the Commission came to the opinion that Mr Clarke would not have contracted the disease but for having rendered eligible war service. However, the Full Federal Court observed in Repatriation Commission v Law (1980) 31 ALR 140 (at 151) that such an interpretation would eliminate the distinction referred to by Davies J in Holthouse between a cause of an incapacity and the circumstances or setting in which the cause operates. Noting that Davies J was not concerned with a provision in the Act, albeit the provision in question s.107M(2)(b)(i) of the Repatriation Act 1920 was very similar to s.9(2), nonetheless the tribunal considers his Honour’s comments to be equally apposite to s.9(2):
… s.107M(2)(b) does not in my view abbrogate [sic] the ordinary principles of causality or dispense with the requirement that the defence service be a contributing cause of the incapacity or death.
64. Accordingly, the tribunal is reasonably satisfied in accordance with s.120(4) of the Act that on the basis of the available evidence, Mr Clarke’s PTSD did not arise out of his war service nor was it attributable to such service. Moreover any incapacity due to PTSD should not be deemed to have been caused by service. The motor car accident occurred while he was on a frolic of his own.
65. The decision under review is varied by finding that the applicant suffers from PTSD, but the decision is affirmed in all other respects.
I certify that the preceding 65 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member:
Signed:
..............................................................................
(Associate)
Dates of Hearing 15 May 2002, 15 January 2003
Written submissions received 31 January and 6 February 2003
Date of Decision 21 November 2003
Applicant’s solicitor Mr B WinshipRespondent’s Representative Ms T McConnell, Dep’t of Veterans’ Affairs.
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