Clements and Repatriation Commission
[2004] AATA 319
•26 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 319
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1716
VETERANS' APPEALS DIVISION ) Re
Edward Clements
Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date26 March 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a new decision that:
(1) the Applicant’s Specific Phobia, in Partial Remission, Situational
Type, is war-caused as defined in s 9 of the Veterans’ Entitlement Act 1986;
(2) the Respondent is liable pursuant to s 13 of the Act for any incapacity arising from that condition with effect from 8 August 2001;
(3) the assessment of the rate at which any pension is payable to the Applicant is remitted to the Repatriation Commission.
.............................................
RP Handley
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENT – Comcare – disability pension – whether Applicant’s condition of Specific Phobia in Partial Remission, Situational Type is war-caused – claustrophobia – no Statement of Principles – necessity that a hypothesis connecting the injury claimed and the Applicant’s operational service be established to the reasonable satisfaction of the Tribunal – held three stressful incidents which occurred during operational service had a cumulative effect on his claimed condition – decision under review set aside – condition is war-caused – Respondent is liable for the condition – assessment of rate of pension to be made by Repatriation Commission.
Veterans’ Entitlement Act 1986 ss 6, 9(1), 13(1), 21A, 22, 23, 24, 120(1), 120(3), 120(4), 120A
Bushell v Repatriation Commission 175 CLR 408
Byrne v Repatriation Commission (1993) 177 CLR 564
Spencer v Repatriation Commission 118 FCR 453
REASONS FOR DECISION
26 March 2004 Mr RP Handley, Deputy President Summary
1. The Applicant, Edward Clements, who is aged 66, served in the Australian Army from 1955 to 1961. He claims that during his operational service he experienced a number of stressful events including a collision while on the troop ship “New Australia” and a shooting while in Singapore. On 8 November 2001, he lodged a claim for disability support pension and treatment for incapacity from skin problems, hearing loss with tinnitus, feet problems, post traumatic stress disorder (“PTSD”), alcohol dependence, hypertension and impotence.
2. On 5 March 2002, a delegate of the Repatriation Commission (“the Respondent”) accepted Mr Clements’ claims for solar keratosis, bilateral sensorineural hearing loss, bilateral tinnitus and impotence effective from 8 August 2001. The delegate denied Mr Clements’ claims for bilateral acquired hallux valgus, PTSD, alcohol dependence and hypertension. The Veterans’ Review Board (“VRB”), on a review, set aside the delegate’s decision with regard to bilateral acquired hallux valgus, substituting a decision that this condition was war-caused. The VRB affirmed the delegate’s decision to refuse the conditions of PTSD, alcohol dependence and hypertension. This is the decision to be reviewed by the Tribunal.
Background
3. Mr Clements was born on 28 December 1937 and is aged 66. He served in the Australian Army from 1 November 1955 to 31 October 1961. The parties agree that Mr Clements was involved in “operational service” with the Royal Australian Artillery in Malaya from 28 September 1957 to 22 August 1958. After leaving the Army, he joined the New South Wales Police Service and was a police officer for nine years. He then worked as a commercial traveller and cleaner before becoming the Manager of Mayne Nickless, Grafton, a position which he held from 1978 until his retirement on 10 February 1997 due to ill health (T p24).
4. On 8 November 2001, Mr Clements lodged a claim for disability support pension in respect of a number of conditions that had not previously been accepted as service-related, including “skin problems”, “hearing loss with tinnitus”, “foot problem” causing “daily pain in both his feet”, “post traumatic stress disorder/anxiety”, “alcohol dependence”, “hypertension” and “impotence” (T4). Mr Clements also completed the section of the claim form relating to his conditions being caused, contributed to or aggravated by his addiction to alcohol and tobacco (T p23).
5. On 5 March 2002, a delegate of the Respondent decided to accept Mr Clements’ claims for solar keratosis, bilateral sensorineural hearing loss, bilateral tinnitus and impotence effective from 8 August 2001 (T p10), assessing Mr Clements’ disability pension at 40% of the General Rate (T p13). The delegate rejected Mr Clements’ claims for PTSD, alcohol dependence, hypertension and bilateral acquired hallux valgus on the basis that he was not satisfied beyond a reasonable doubt that the conditions were related to Mr Clements’ operational service (T pp10-12).
6. On 8 April 2002, Mr Clements applied to the VRB for a review of this decision, stating that he considered the rejected conditions were causally related to his eligible service (T7 p31). On 7 May 2002, a review officer decided not to intervene to conduct an internal review (T8 p32). On 3 April 2002, Mr Clements lodged an application for a second review of the decision. On 12 July 2002, a review officer affirmed the decision not to intervene on the basis that having read the historical researcher’s report, he was unable to confirm Mr Clements’ claimed stressors (T10 p40). Mr Clements sought a review of this decision.
7. On 4 October 2002, Mr Clements’ application came before the VRB for hearing. The VRB decided that Mr Clements’ condition of acquired hallus valgus was war-caused and found liability for the condition from and including 8 August 2001 (T pp42-43). The VRB affirmed the decision in relation to PTSD, hypertension and alcohol dependence (T p43). Mr Clements was notified of the decision by letter dated 17 October 2002 (T12 p60).
8. On 13 November 2002, Mr Clements lodged an application with the Tribunal for a review of that part of the VRB decision that affirmed the refusal of Mr Clements’ claim in respect of PTSD, hypertension and alcohol dependence. At the request of Mr Clements’ solicitor, he was examined by a consultant psychiatrist, Dr Robert Delaforce on 15 April 2003. Dr Delaforce diagnosed Mr Clements as suffering from Specific Phobia in partial remission. The parties agree that should Mr Clements’ application be successful and the Tribunal finds his disabilities to be war-caused, then the date of effect is 8 August 2001.
9. At the hearing of this matter held in Coffs Harbour, the Applicant was represented by Brian Winship, Solicitor, of Fairbairn Lawyers, and the Respondent was represented by Nigel Bunn, Advocate, of the Department of Veterans’ Affairs. Mr Winship did not press Mr Clements’ claims in respect of PTSD, alcohol dependence and hypertension but instead pressed a claim for Specific Phobia in Partial Remission, Situational Type. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with two reports from Dr Delaforce tendered by the Applicant. Oral evidence was given at the hearing by Mr Clements and Dr Delaforce.
Applicable Legislation
10. A war-caused injury or disease is defined in s 9(1) of the Veterans’ Entitlement Act 1986 (“the Act”). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service as defined in s 6.
11. Section 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
12. Section 21A provides for the Respondent to “determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions, which is currently in its fifth edition (“GARP”). Section 22 provides that pensions by way of compensation are paid to veterans who have attained the age of 65 at a percentage of the maximum General Rate of pension payable which constitutes the same percentage as the degree of incapacity determined by the Respondent in accordance with s 21A. However, a veteran may be entitled to payment of pension at a higher Intermediate or Special Rate if certain criteria, set out in ss 23 and 24 respectively, are fulfilled.
13. The parties agree that Mr Clements’ service in the Army from 28 September 1957 to 22 August 1958 is operational service as defined in s 6 of the Act. The standard of proof to be applied in relation to operational service in determining whether an injury or disease was war-caused is that provided for in subsections 120(1) and (3). Pursuant to these provisions, if the injury or disease relates to operational service, the Respondent shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person’s service.
14. Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulations “to its reasonable satisfaction”. Because the Applicant’s claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles (“SoP”) in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.
Evidence
Edward Clements (“the Applicant”)
15. Mr Clements said he was a month short of 18 on joining the Army. Prior to this, he had done some labouring work. His initial Army training was over a period of three months at the training camp at Kapooka. This was basic infantry training. Mr Clements recalled an incident during a tear gas exercise in late 1955/early 1956. They had to go into a bunker in small groups and were then subjected to a small amount of tear gas before being permitted to put on gas masks. Mr Clements said he experienced a feeling of panic and anxiety – he felt there was no escape from this small place and he had to endure it because it was part of his training. The exercise lasted about 30 minutes and he was very relieved when it finished.
16. After completing his training, Mr Clements was posted to the School of Artillery at North Head, Sydney. From there, he was transferred to the First Field Regiment, A Battery, and posted to Malaya. The Battery was told they would have to carry out patrols and artillery work in support of other troops stationed there. They embarked on the troop ship “New Australia”, an old ocean liner, which carried about 1,100 passengers, and sailed from Sydney in rough seas. Mr Clements was allocated a cabin on “D” deck with about three others. He said it was a very small “pokey” cabin near the water line – there were two double bunks and you could see the water outside the porthole. He felt “closed in” and anxious in such a small space. They were in the bowels of the ship and wondered how they would escape if something happened. Access was by an elevator or very steep emergency stairs. They made sure they knew how to get out.
17. The ship left Sydney on a Wednesday. On Sunday night, near Thursday Island, the ship collided with an oil tanker, damaging the bow area on the starboard side of the “New Australia”. Mr Clements was on deck at the time of the collision which took place on a fine night. They were instructed to get their life jackets but were unable to do so because the emergency watertight doors to their deck had closed. So Mr Clements and his friends assembled at their boat station where they remained for a couple of hours. They did not know what was going on and Mr Clements said he was very worried. After a couple of hours, they were told to stand down. In cross-examination, Mr Clements confirmed that he had probably told Dr Delaforce that even if the boats had been lowered, he would probably have been okay.
18. Mr Clements said from then on, he and his friends never slept in their cabin. They slept on deck chairs on the deck and only went to their cabin to change their clothes or to shower. This was because if an incident had occurred and the emergency watertight doors had shut, they would have been unable to escape from their deck. Mr Clements said he was okay on deck because it was not enclosed.
19. After three or four days at Thursday Island when repairs to the ship were attempted with little success, the ship commenced steaming slowly to Singapore. This took about another week. Thus for 10 or 11 days, Mr Clements and his friends slept in deck chairs on the deck. The “New Australia” then stayed in Singapore for a week while repairs were carried out. Mr Clements’ Battery was stationed at Nee Soon Barracks on the outskirts of Singapore.
20. On the first night they were there, Mr Clements met up with a soldier from B Company who was at the Barracks in transit. He seemed to know Singapore and took them into town to show them around. They witnessed a brawl between a group of Chinese, one of whom produced a gun and shot another. Mr Clements said it was frightening and he and his friends got out of the area as soon as possible.
21. On arriving in Malaya, Mr Clements was stationed in the village of Lintang, near the town of Sungei Siput. The Battery’s duties included firing artillery into the surrounding hills where insurgents were thought to be located. Mr Clements remembered going to the police station in Sungei Siput and seeing three dead bodies – a man and two women laid out on a lawn. The two women were dressed in light shirts and black trousers; the zips on their trousers were undone exposing their stomachs. A sergeant said they were pregnant although it was not apparent to Mr Clements. This was the first time he had seen dead bodies. He was very upset, and disgusted because he had been taught to respect women.
22. On reaching Malaya, Mr Clements developed severe acne, especially affecting the back of his neck and his chest. He had all sorts of treatment for this condition, including hospitalisation, but without success. Eventually, in August 1958, about half way through his posting, he was evacuated to Australia. He flew out of Singapore, travelling via Jakarta, Perth and Melbourne to Sydney. This was the first time Mr Clements had flown in an aircraft, and he felt enclosed and anxious.
23. On the leg of the flight from Perth to Melbourne, in a four-engined Super G Constellation turbo prop aircraft, he was sitting next to a New Zealander. It was dark. They noticed that there was a light shining on one of the engines and it was not operating. Mr Clements said this increased his anxiety. Eventually, they were told by a steward/stewardess that a warning light had come on for that engine which had been shut down, but that the aircraft could fly perfectly well on three engines. Later, they noticed the light had gone out.
24. Mr Clements said now that he does not have to, he will not fly at all. He gets too panicky. When he worked for Armaguard between 1983 and 1997, he had to fly about 20 times to attend meetings in Sydney or conferences in Queensland or, on one occasion, in Fiji. He remembered once when he was going to drive from Gosford to Grafton for a meeting, but was told by his Manager to fly. He used to get the same feelings of panic and anxiety every time. On several occasions, he made excuses and did not attend meetings to avoid flying.
25. Mr Clements said the feelings of panic only occur in enclosed spaces such as aircraft, elevators, or on trains passing through tunnels. He finds driving a car okay because he is in control. He puts up with elevators if he has to. These are situations he feels he cannot control and from which he cannot escape. He avoids such situations wherever possible.
26. Mr Clements said he had never experienced these feelings of panic and anxiety before the incident at Kapooka. It was during his Army service that he discovered his fear of enclosed spaces. Of the other incidents, Mr Clements said the most frightening was the night of the collision on the “New Australia” because if the ship had been badly damaged, it would have sunk. The incidents in Singapore and Malaya were frightening but, in each case, he could escape. It is when he cannot escape that he is more frightened.
Dr Robert Delaforce
27. Dr Delaforce is a forensic psychiatrist who prepared two medico-legal reports for the Applicant, dated 17 April 2003 (A1) and 18 June 2003 (A2). In his report dated 17 April 2003 (A1), Dr Delaforce said that on the basis of what Mr Clements had told him:
I cannot support a conclusion that he experienced a severe stressor during the operational period.
Dr Deleforce said while he had not diagnosed PTSD, he diagnosed Alcohol Dependence, with Physiological Dependence, Sustained Partial Remission and Specific Phobia, in Partial Remission, Situational Type. He said:
The Specific Phobia was present from the 1970s at the earliest, if not in the 1980s with the onset of his problems with his flying. Nowadays, and mainly because of his lifestyle, it has improved to reach the In Partial Remission stage.
28. Dr Delaforce said:
I cannot relate the Specific Phobia onset in any reasonable way to the circumstances of his service given especially the absence of a significant stressor.
Dr Delaforce stated his prognosis:
There will continue to be very minimal effect from the Specific Phobia because of his current lifestyle. Even with the continued lower use of alcohol there may be more alcohol-related problems eventually.
29. In his second report dated 18 June 2003 (A2), Dr Delaforce said:
the Specific Phobia was not present during service and therefore cannot be aggravated by service.
With regard to the stressful incidents during occupational service, he said:
They are objectively and subjectively severe enough to support the reasonable connection between Alcohol Dependence and the circumstances of his service.
30. Dr Delaforce noted that Mr Clements omitted to tell him of the Kapooka incident. Dr Delaforce said Mr Clements’ training would have deliberately included some anxiety provoking situations so that he had to address his fear and could learn how to address and overcome it. While there might be a variation in the level of anxiety experienced by recruits, it would be normal to experience anxiety and fear in such a situation.
31. With regard to the incident on board the “New Australia”, Dr Delaforce noted that it was not only Mr Clements but his companions who slept in deck chairs on deck after the collision. It was understandable that they should experience fear and anxiety in such a situation and want to avoid sleeping below deck. Dr Delaforce said it was not a psychiatrically significant fear because there is no indication of Mr Clements having experienced ongoing problems after the ship arrived in Singapore.
32. Similarly, with the shooting in Singapore and Mr Clements seeing the dead bodies in Malaya, Mr Clements’ reaction to these incidents appears to have been normal at the time.
33. Dr Delaforce said phobias are irrational fears that a person will try and avoid or, if subjected to one, look for an escape route. A specific phobia is an irrational anxiety or fear in relation to certain situations encountered in life. The symptoms of the phobia must either interfere in the person’s life or activities or give the person significant distress. In Mr Clements’ case, claustrophobia was not a problem until the 1970s or 1980s and it is possible that it was then secondary to the use of alcohol.
34. Dr Delaforce said Mr Clements might have experienced anxiety even if he had not had occupational service. However, the occupational service may have increased his later anxiety. Mr Clements experienced a number of significant stressful events during the course of his occupational service. The accumulation of these events may have contributed to his alcohol dependence. The fact that the onset of Mr Clements’ phobia was relatively late, suggests that it may have been secondary to his alcohol dependence. Nevertheless, the effect of stress is cumulative and Dr Delaforce recognised that it could have contributed to causing his later developed phobia.
35. Dr Delaforce said it is still his opinion that Mr Clements did not experience a severe stressor during his occupational service. He was not overly distressed when he described the incidents. However, the stressful events experienced in occupational service did make a contribution to his later developed specific phobia including through alcohol dependence. The clinical onset of Mr Clements’ alcohol dependence was when he consumed large quantities of beer on the “New Australia” because the ship was short of drinking water following the collision. In the case of alcohol use, it can take many years after the first heavy use before a disorder is present. Dr Delaforce said Mr Clements’ disorder may be alcohol induced anxiety disorder with phobic features – the chronic use of alcohol induces the phobia. Mr Clements’ alcohol dependence is now in sustained partial remission but for many years he was troubled by this and the dependence is still present.
Consideration of the Law and Findings
36. Since the Applicant no longer presses his claims in respect of alcohol dependence, PTSD or hypertension, the issue for the Tribunal to determine is whether Mr Clements’ claimed disability of Specific Phobia in Partial Remission, Situational Type, is war-caused. No SoP exists pursuant to s 120A of the Act in respect of this condition. Where there is no relevant SoP in respect of a condition, the steps to be followed in applying s 120 of the Act are those stated by the High Court (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571:
The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
37. As was pointed out by the High Court in Bushell v Repatriation Commission 175 CLR 408 at 414:
The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s.120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.
38. The first step, therefore, is for the Tribunal to consider whether some or all of the facts raised by the material before the Tribunal give rise to a reasonable hypothesis connecting Mr Clements’ condition with his war service. The Tribunal’s consideration must be made on the medical evidence presented to the Tribunal and not upon any artificial constraints imposed by the SoP regime: Spencer v Repatriation Commission 118 FCR 453.
39. The hypothesis put forward by the Applicant is that Mr Clements’ suffered four incidents of significant stress before and during operational service which had a cumulative effect on his specific phobia which has continued since the 1970s. The hypothesis is based on Dr Delaforce’s evidence that the four events which Mr Clements’ described as causing him fear and anxiety, being the exercise at Kapooka involving tear gas, the collision between the “New Australia” and the oil tanker, the brawl and shooting in Singapore and his witnessing of the three dead bodies at Sungei Siput, would have caused him significant stress overall. Of these, the most significant event was the collision between the “New Australia” and the oil tanker which, in Dr Delaforce’s opinion, was the reason for Mr Clements commencing heavy drinking that lead, in time, to alcohol dependence. The Tribunal notes that alcohol dependence was not pressed because of the difficulty of establishing a severe stressor within the two years immediately before the clinical onset of alcohol dependence.
40. The evidence of Dr Delaforce suggests that the facts raised by the hypothesis are not too tenuous or remote, and that it is plausible that the three incidents described above which took place during Mr Clements’ operational service did have a cumulative effect on Mr Clements and contributed to Mr Clements developing the condition Specific Phobia, in Partial Remission, Situational Type. As the Respondent noted, Dr Delaforce recognised that Mr Clements’ Specific Phobia may be secondary to his alcohol dependence. However, the three incidents which occurred during his occupational service did, nevertheless, make a contribution to the later development of Mr Clements’ phobia. Proof of the facts is not an issue at this point. The Tribunal is therefore satisfied that a reasonable hypothesis has been raised connecting the three incidents described by Mr Clements with his specific phobia.
41. Step two of Byrne (supra) provides that the hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts proved inconsistent with those raised by the hypothesis. The standard of proof required by s 120(1) is that the Tribunal is satisfied beyond reasonable doubt of those matters. The Tribunal finds that in late 1955/early 1956, Mr Clements experienced anxiety during a tear gas exercise in which he took part during the course of his training at Kapooka. Nevertheless, there is no evidence that he suffered any lasting effect as a result of this incident at the time.
42. Mr Clements also experienced a number of stressful incidents during the period of his occupational service. Mr Clements’ evidence is that the most frightening of these was the collision with an oil tanker while he was on board the troop ship “New Australia”. There is no evidence of Mr Clements suffering any lasting effect as a result of any of these incidents at the time. However, the Tribunal accepts that the effect of a number of stressful events can be cumulative and could contribute to the later development of a Specific Phobia.
43. The Tribunal finds that Mr Clements developed a Specific Phobia in relation to enclosed spaces (claustrophobia) in the 1970s when he was working for Armaguard. In particular, he sought to avoid flying and other enclosed situations such as elevators where he felt a lack of control and the absence of any means of escape. This is borne out by Mr Clements’ evidence and is consistent with the opinion expressed by Dr Delaforce. Since Mr Clements has retired, he has not flown and continues to avoid enclosed situations. Mr Clements’ evidence suggests that provided he avoids enclosed situations, the effects of this condition on his lifestyle are minimal.
44. While the effects of Mr Clements’ diagnosed Specific Phobia on his lifestyle are in the Tribunal’s opinion, minimal, the Tribunal is not satisfied beyond reasonable doubt that any facts necessary to support the hypothesis are disproved beyond reasonable doubt nor is the Tribunal satisfied beyond reasonable doubt of other facts, inconsistent with the hypothesis that disprove the hypothesis. In the absence of such contradictory material, the Tribunal determines that Mr Clements’ condition of Specific Phobia, in Partial Remission, Situational Type, is war-caused with effect from 8 August 2001. The Tribunal therefore remits the matter to the Respondent to calculate the rate of pension payable.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 19 March 2004
Date of Decision 26 March 2004
Representative for the Applicant Mr B Winship, Solicitor
Representative for the Respondent Mr N Bunn, Advocate
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