Cove and Repatriation Commission (Veterans' entitlements)
[2021] AATA 3095
•1 September 2021
Cove and Repatriation Commission (Veterans' entitlements) [2021] AATA 3095 (1 September 2021)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/2145 and 2017/3890
Re:Alan Cove
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:1 September 2021
Place:Melbourne
The order of the Tribunal is to set aside the decisions of the Veterans’ Review Board dated 16 February 2016 and 23 June 2017 and substitute that Mr Cove is entitled to a pension under Part 2 of the Veterans’ Entitlements Act 1986 (Cth) for his PTSD and irritable bowel syndrome.
....[SGD]..........................................................
Deputy President Britten-Jones
Catchwords
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for pension – claim for compensation for PTSD and irritable bowel syndrome – applicant experienced Category 1A Stressor – whole of material points to a reasonable hypothesis connecting injuries with operational service – hypothesis not disproved beyond reasonable doubt – four steps of Deledio satisfied – applicant’s PTSD is war-caused resulting from traumatic events while rendering operational service – decision is set aside and substituted
Legislation
Statement of Principles concerning posttraumatic stress disorder (No. 82 of 2014) (Cth)
Statement of Principles concerning irritable bowel syndrome (No. 27 of 2011) (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Border v Repatriation Commission [2010] FCA 1430; 191 FCR 163
Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408
Byrnes v Repatriation Commission [1993] HCA 51; 177 CLR 564
Hunter v Repatriation Commission [2010] FCA 145; 114 ALD 89
Mines v Repatriation Commission [2004] FCA 1331; 40 AAR 238
Repatriation Commission v Budworth [2001] FCA 1421; 116 FCR 200
Repatriation Commission v Deledio [1998] FCA 391; 83 FCR 82
Repatriation Commission v Stares (1996) 66 FCR 594REASONS FOR DECISION
Deputy President Britten-Jones
1 September 2021
This is an application for review of decisions of the Veterans’ Review Board dated 16 February 2016 and 23 June 2017, which denied the claim by the applicant (Mr Cove) for a pension under Part II of the Veterans Entitlements Act 1986 (Cth)[1] for irritable bowel syndrome, post-traumatic stress disorder (PTSD) and alcohol use disorder. Mr Cove only continues to pursue claims for irritable bowel syndrome and PTSD.
[1] All references to legislation are to the Veterans Entitlements Act 1986 unless otherwise stated.
The matter was first heard by the Tribunal in January and November 2018 but the decision arising from that first hearing was set aside by the Federal Court and remitted to be reheard by the Tribunal. The transcript from the first hearing was accepted as evidence in this hearing but the matter proceeded de novo.
Mr Cove served in the Royal Australian Navy from 26 August 1963 to 26 August 1972. He claims that his PTSD and irritable bowel syndrome were war-caused and resulted from one or more traumatic events that happened while he was rendering operational service as follows:
(a)17 February 1966 to 26 April 1966 in Malaysia and Singapore;
(b)27 April 1966 to 9 May 1966 in Vietnam;
(c)9 June 1966 to 16 July 1966 in Malaysia and Singapore; and
(d)24 July 1966 to 3 August 1966 in Malaysia and Singapore.
The respondent denies the claim and says that Mr Cove’s PTSD and irritable bowel syndrome were caused by his presence at Australia’s worst peacetime naval disaster when the HMAS Melbourne collided with the HMAS Voyager in February 1964. The applicant relies upon Factor 6(f) of the Statement of Principles No. 27 of 2011 relating to irritable bowel syndrome which requires the following as a minimum factor for a reasonable hypothesis connecting irritable bowel syndrome with relevant service; “having a specified psychiatric condition within the six months before the clinical worsening of irritable bowel syndrome”. The respondent therefore concedes, and I agree, that if Mr Cove’s claim with respect to his PTSD is accepted by the Tribunal then it follows that his claim for irritable bowel syndrome would also be accepted. I will therefore focus in these reasons on the PTSD claim.
EVIDENCE
The Tribunal heard oral evidence from Mr Cove, a historian named Dr Palazzo, and three psychiatrists named Drs Sundin, Martin and Ewer. There was not a significant degree of dispute about the factual and opinion evidence. Both parties agreed that Mr Cove was an honest witness who did his best to recall events and did not intentionally embellish them or couch them to support his case. However, the respondent did say that Mr Cove’s evidence was affected by subsequent knowledge that he has gained through researching the historical events surrounding his service and should therefore not be entirely accepted. I find that Mr Cove was an honest witness whose final recollection of events should be accepted.
Evidence from Mr Cove
Mr Cove provided a written statement dated 16 June 2016. On 16 February 2016 and 23 June 2017 Mr Cove gave evidence to the Veterans’ Review Board. Mr Cove gave evidence to the Tribunal at the first hearing on 25 January 2018 during which he made some changes to his evidence in his written statement dated 16 June 2016. Finally, there is Mr Cove’s oral evidence to the Tribunal at this hearing on 2 August 2021.
I have also had regard to the following medical reports which recorded Mr Cove’s history as told by him. Dr Martin interviewed Mr Cove on 14 November 2014 and Mr Cove described to him his experiences during his naval service. Dr Sundin interviewed Mr Cove on 12 December 2017 and took a history from him as part of a psychiatric examination. Dr Ewer also interviewed Mr Cove and took a history from him as part of a psychiatric report dated 17 May 2021. Mr Cove confirmed the accuracy of the history recorded by Dr Ewer.
Mr Cove enlisted in the Navy on 26 August 1963, aged 17. He underwent three months of recruit training. He was serving on the HMAS Melbourne when it collided with the HMAS Voyager in February 1964. He was below the waterline when the hatches were closed. A long and stressful period ensued before he was able to make it to the upper deck. Many of his mates were killed. He watched in horror as crew members from the Voyager jumped from the ship. Some of the men were on fire. He then witnessed the sinking of the aft section with all remaining crew. There is no dispute with respect to this traumatic event and that Mr Cove suffers PTSD related to it.
Two years later in 1966, Mr Cove had four periods of operational service whilst on board the HMAS Vampire. It was the evidence with respect to the events of 1966 that Mr Cove changed, in part, at the time of the first Tribunal hearing in January 2018. These changes were not so much whether an event occurred but more so where and when. For example, the events involving bombardments and sampans did not take place in the waters off Vietnam but rather they occurred in Indonesian waters during the third period from 9 June to 16 July 1966. It is entirely understandable that Mr Cove recalled some of these events inaccurately because they are events from over 50 years ago.
With respect to the four periods of operational service in 1966, I am prepared generally to accept the evidence that Mr Cove has given to the Tribunal in 2018 and 2021 which I set out below.
17 February to 26 April 1966 in Malaysia and Singapore
Mr Cove joined the HMAS Vampire on 17 February 1966 and then sailed with HMAS Derwent to Singapore where they stopped for maintenance and training. There were short periods on patrol but nothing remarkable happened.
27 April 1966 to 9 May 1966 in Vietnam
The HMAS Vampire escorted the HMAS Sydney to South Vietnam. Mr Cove did not go ashore but cruised along the coast off that part of South Vietnam near Vung Tau harbour. He observed explosions occurring north of Saigon and said “we were at war and our lives were at risk”. He was told they could be attacked in Vung Tau harbour and that divers could try and damage the ship. They were anchored in the harbour for two nights.
9 June to 16 July 1966 in Indonesia
This was the period during which the HMAS Vampire commenced operations as a part of Australia’s contribution to Malaysia’s defence against Indonesia during what is referred to as the Confrontation. The HMAS Vampire was patrolling Indonesian waters seeking to intercept and board sampans and other suspicious vessels that they were told were “intent on sinking us”. Mr Cove was aware of the risk of sampans carrying explosives. He was never a part of any boarding party, but they approached several boats and sailors boarded them. They dealt with boats in this context every day. He recalls one occasion when a boarding party captured persons he assumed were the enemy and brought them on board the ship. He was standing very close to one of them. They were not armed, nor did they look like soldiers. They looked like they were fishermen or smugglers. He said he was concerned for his life during these interceptions but that no weapons were ever discovered on these boats.
During this period, the HMAS Vampire fired bombardments onto the shore. He knew from prior practice that their gunnery accuracy was poor and he was concerned about collateral damage, that is, women and children and other civilians being killed or injured.
During this period, on four or five occasions in open sea, Mr Cove climbed up the ship’s mast and repaired corroded communication cables. This was a task given to him by the Captain of the HMAS Vampire. He used a safety harness but had to take it off when reaching out from the mast towards the damaged cables.
24 July to 3 August in Malaysia and Singapore
This was Mr Cove’s final operational service where he spent 10 days in Malaysia and Singapore, before returning to Darwin. Mr Cove does not claim that he experienced any traumatic events during this period.
Evidence from Dr Palazzo
Dr Palazzo is a professional historian with more than 25 years of experience at the University of New South Wales. He is also an historian for the Australian Army. He was asked to provide historical research into the service of Mr Cove in the Royal Australian Navy; in particular, his service in Malayan and Vietnamese waters during the Confrontation and the Vietnam War. He provided oral evidence and three reports dated 21 August 2016, 16 October 2017 and 19 May 2018.
In his first report, Dr Palazzo confirmed three periods of operational service from 17 February 1966 to 26 April 1966 in Malayan waters; 27 April 1966 to 9 June 1966 in Vietnamese waters; and 9 June 1966 to 19 July 1966 in Malayan waters. He provided some historical context as follows:
Confrontation (or Konfrontasi) was an undeclared war fought from 1962 to 1966 between Britain and the Commonwealth allies and Indonesia. The war had been initiated by Indonesia with the objective of destabilising the recently established Federation of Malaysia. Australia had committed itself to the defence of Malaysian territory through its participation in the five Power Defence Arrangement (United Kingdom, Australia, New Zealand, Malaysia and Singapore). …
On 17 February 1966, the Vampire in the company of HMAS Derwent sailed from Sydney for the passage to Singapore. … The Vampire was soon to commence operations as a part of Australia’s contribution to Malaysia’s defence against Indonesia during Confrontation. Cove was a member of the crew throughout this period.
The Vampire’s task was to conduct counter-interdiction patrols of the seaward approaches to Malaysia and Singapore from nearby Indonesian territory. …
The Vampire’s Report of Proceedings for these months documents numerous anti-interdiction patrols carried out by the ship. The ship stopped and searched numerous small vessels that were transiting its patrol area. Invariably, these turned out to be fishermen carrying out illegal fishing, curfew violators or smugglers running contraband between Malaysian and Singaporean waters and the Philippines. … On some occasions, when smugglers refused to stop, the Vampire illuminated the night with flares and open fired with its Bofors Gun …
Although the Vampire never encountered Indonesian infiltrators, the seriousness of these activities should not be discounted. The Vampire’s crew were at action stations and had boarding parties standing by. It was only after the completion of a search of a stopped boat that the lack of threat would be perceived.
With respect to precautions at Vung Tau harbour, Dr Palazzo said that the Royal Australian Navy considered the risk of enemy attack to the HMAS Sydney as very real and implemented defence protocols to safeguard the vessel from attack:
There is no doubt that the Vampire implemented all these precautions when it entered Vung Tau Harbour. Its Report of Proceedings notes the implementation of Operation Awkward precautions including the standing of armed sentries, the launching of patrol boats and the dropping of scare charges... Thus, for Cove and his fellow sailors there was no disguising the fact that Vung Tau was a war zone and that they were at war.
With respect to bombardments, Dr Palazzo refers to gunfire support missions which were later identified as exercises only but involved the firing of live rounds. More generally, Dr Palazzo said in his oral evidence that there was no doubt that “the Vampire and other Australian forces in the area were, you know, on a war footing and conducting themselves in a hostile environment.”[2]
[2] Transcript dated 2 August 2021, p 52 at lines 28 – 29.
Dr Palazzo was cross examined about his statement that during the Confrontation, when intercepting vessels, everyone on board the Vampire would have been aware they were in a theatre of war and he said:[3]
… I mean they’re having to fire their Bofors gun … in an attempt to get this speeding small boat to stop. Now, you’re only firing, you know, a secondary weapon on this ship on the Vampire. You know, this is a war mission and, you know, Australia while it did not declare war formally was at war with Indonesia and by sailing into these waters on this operational assignment the sailors onboard the Vampire would have known that they were conducting a war fighting mission. So I don't think that’s an assumption in the slightest, I think that is a conclusion based upon the facts of the matter that the Vampire was despatched overseas into a war theatre just in the same way Australia despatched members of the Special Air Service Regiment and also an infantry battalion ashore and were in contact with Indonesian parties in Borneo.
[3] Transcript dated 2 August 2021, p 61 at lines 18 – 30.
Evidence from Dr Sundin
Dr Josephine Sundin, psychiatrist, examined Mr Cove and provided a report dated 12 December 2017. She subsequently gave evidence at the first hearing on 6 November 2018 and at the second hearing on 2 August 2021.
In her report, Dr Sundin opined that Mr Cove suffered an acute stress reaction in the immediate aftermath of the Voyager incident, followed by a delayed onset of PTSD. Delayed onset of PTSD refers to circumstances when the full diagnostic criteria for PTSD is not met until at least six months after the traumatic event.
In oral evidence on 2 August 2021, Dr Sundin clarified her position after considering Dr Ewer’s report where he obtained a more detailed history. She opined that Mr Cove likely suffered from subsyndromal PTSD immediately after the Voyager collision but that the condition fully developed later. She said that Mr Cove’s distressing psychological symptoms onset in the mid to late 1970s. She further stated that although it is possible that there was onset in the late 1960s, due to Mr Cove’s difficulties recollecting events, as well as his likely memory repression, she could not make this finding.
Dr Sundin outlined her understanding of the facts surrounding the events after the Voyager collision that Mr Cove contends contributed to, or worsened, his PTSD. Mr Cove described to Dr Sundin approximately five occasions when he was sent up the mast to repair corroded communication cables when the sea was choppy. He said that the job would take between five and 30 minutes and that he had to release his safety harness to catch the cable. He described to Dr Sundin that this experience induced fear and that he felt exposed and at risk. He said that he was “hanging on for dear life trying to catch the cable”.
Mr Cove also described to Dr Sundin his fears that the bombardments in the Malayan waters may have injured or killed innocent civilians, including women and children. There is no reference to intercepting sampans and other fishing vessels in Dr Sundin’s report.
Dr Sundin stated that the Voyager accident, together with the additional stressors during Mr Cove’s service in Asian waters, likely had a cumulative impact on his PTSD symptoms. She opined that that Mr Cove had a sense of threat and apprehension during his time in Vung Tau Harbour, which substantially worsened in Indonesia when, over a period of 28 days, he was at action stations, witnessed bombardment of the coastline, and had to repair communication cables on the mast. She said that Mr Cove described emotional reactions to these events and therefore it was “more than likely” that they aggravated his subsyndromal PTSD.
Evidence from Dr Ewer
Dr Martin Ewer, psychiatrist, examined Mr Cove and provided a report dated 17 May 2021 at the request of the respondent. He also gave oral evidence on 3 August 2021. Dr Ewer could not say whether Mr Cove’s PTSD developed after 17 February 1966 but thought that it was “probably more likely the case” that it was diagnosable before 1966. He recorded that Mr Cove had intrusive recollections soon after the collision in 1964, however, due to Mr Cove’s faded memory, he was unable to obtain a history of the other symptoms required for a PTSD diagnosis. In oral evidence, Dr Ewer explained that the literature states that delayed onset PTSD is rare and that this is the reason he considers it more likely that Mr Cove had the symptoms to meet diagnosis within 6 months of the Voyager collision.
Dr Ewer obtained Mr Cove’s history with respect to the events that occurred after the Voyager collision. Mr Cove reported to Dr Ewer that he was concerned for his life when the HMAS Vampire intercepted sampans and fishing vessels in Indonesian waters as he was warned that the boats were “intent on sinking us”. Mr Cove described the incident where he climbed a mast to fix the cable and an RAAF jet scared him, causing him to nearly fall. Mr Cove told Dr Ewer that whilst on the mast, he had to release his harness to reach the cable. Dr Ewer clarified in cross-examination that he did not mention the other times when Mr Cove climbed the mast in his report because Mr Cove did not appear as troubled by these other instances. Regarding the ship to shore bombardments in Malayan waters, Mr Cove told Dr Ewer that “It still bothers me that shells could’ve been landing anywhere and killing anybody”.
Dr Ewer provided his opinion as to whether Mr Cove’s PTSD was worsened by any of these events during operational service. He opined that:
It is possible that some of the other traumatic events that I have described may have made his PTSD a little worse. I cannot say this probably has occurred and this is largely because he had difficulty recalling what he was like after the subsequent traumatic events.
Evidence from Dr Martin
Dr Chris Martin, psychiatrist, examined Mr Cove and provided a written report dated 8 January 2015 at the request of the respondent. He then provided subsequent reports dated 11 August 2016 and 15 September 2016 at the request of Mr Cove. He gave oral evidence at the first hearing on 25 January 2018 and at the second hearing on 3 August 2021.
At the first hearing on 25 January 2018 Dr Martin confirmed his opinion that Mr Cove’s PTSD was late onset and that Mr Cove did not report to him any symptoms of PTSD or partial symptoms thereof prior to his service in Vietnam and Malaysia. He said that those symptoms appeared after that period of service.[4] He confirmed his position at the second hearing when he said that Mr Cove reported to him that the onset of any symptoms related to PTSD occurred in the late 1960s, in other words subsequent to his service in 1966.[5]
[4] Transcript dated 25 January 2018, p 37 at lines 37 – 41.
[5] Transcript dated 3 August 2021, p 69 at lines 32-34.
Dr Martin agreed with Dr Ewer that it would be impossible to provide a more specific date of onset due to Mr Cove’s faded memory.
Mr Cove reported to Dr Martin a “terrifying experience when repairing communication wires on a mast on the HMAS Vampire when he was spooked by a low flying RAAF fighter jet, almost causing him to fall”. He also reported “feelings of horror” during the ship to shore bombardments where he worried that the shells might fall on innocent women and children. Mr Cove also recollected his encounters with local sampans and fishing vessels and said that he felt “great fear” when he encountered sampans as they were used as booby traps by the Viet Cong. During their interview in 2014, Mr Cove mistakenly relayed to Dr Martin that these events occurred in Vietnam due to his faded recollection.
In his report dated 15 September 2016, Dr Martin opined:
I do agree that it was more likely than not that [Mr Cove’s] experiences in Vietnam either contributed to the development of his post-traumatic stress disorder, or aggravated a pre-existing post-traumatic stress disorder.
In his oral evidence on 3 August 2021, Dr Martin told the Tribunal that he had changed his opinion as to the likelihood that the subsequent events after the Voyager collision contributed to Mr Cove’s PTSD. Dr Martin said that upon reading the reports of Dr Ewer and Dr Sundin, who elicited different histories from Mr Cove, he could no longer hold that it was more likely than not that Mr Cove’s experiences in operational service contributed to his development of PTSD. Dr Martin said that in some respects Mr Cove had similar experiences to the ones he reported in their interview, albeit in a different theatre of war, however there was significant uncertainty about Mr Cove’s history. When asked to clarify his opinion as to the likelihood that the events in operational service contributed to Mr Cove’s PTSD, Dr Martin said:
I'm unable to really give a definitive opinion about the effect of what happened in Asia in relation to the eventual development of PTSD, other than to say that I think it was likely, but the general unreliability of the history makes me reluctant to say that it is more likely than not.
Dr Martin clarified that his opinion that it was “likely” that the events during operational service contributed to Mr Cove’s PTSD went further than Dr Ewer’s opinion that the subsequent events “may have” worsened Mr Cove’s PTSD. However, he retreated from his earlier opinion that it was “more likely than not” that the events during operational services contributed to the development of PTSD.
Dr Martin concluded at the hearing before me:[6]
On other words, there were the Voyager incident, which clearly meets the - fulfils the criteria for PTSD which development much later, and then these traumas, in the loose sense of that term, which occurred in Asia, and the - taken together those incidents are likely to have both contributed in a causative way to the development of his Post-Traumatic Stress Disorder.
[6] Transcript dated 3 August 2021, p 86 at lines 38-42.
LEGAL FRAMEWORK
Subsection 13(1) provides, in effect, 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.
Section 9 provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
...
(e) the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
The expression “operational service” is defined in ss 6 to 6F. Under s 6C, a person renders operational service if they are, among other things, allotted for duty in an operational area. It is common ground that Mr Cove’s periods of service set out above were operational service.
Section 120 provides for the standard of proof applicable to the determination of whether any psychiatric condition suffered by Mr Cove is war-caused. That section provides relevantly as follows:
120
Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
Subsection 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
In Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 414 Mason CJ (Bushell), Dean and McHugh JJ said with respect to a “reasonable hypothesis”:
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…
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”.
The decision in Bushell was followed and further explained by the High Court in Byrnes v Repatriation Commission [1993] HCA 51; 177 CLR 564 at 569–570:
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.
Further, the Full Court of the Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594 at 601 said:
By there saying that "the material must point to some fact or facts" their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion. It is trite to observe that a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact.
Section 120A is also applicable. Subsection 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by that person is reasonable only if there is in force a Statement of Principles (SoP) determined under sub-ss 196B(2) or 196B(11), or a determination of the Commission under s 180A(2) that upholds the hypothesis. In other words, any hypothesis raised by the material will only be reasonable if it is consistent with, or fits the template of, the SoP: Repatriation Commission v Deledio [1998] FCA 391; 83 FCR 82 at 96 (Deledio).
The method by which ss 120(1), 120(3) and 120A(3) are to be applied was explained in Deledio at 97–98. The Full Court (Beaumont, Hill and O’Connor JJ) said:
At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it would neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
The third stage of Deledio requires consideration of the relevant SoP concerning posttraumatic stress disorder No. 82 of 2014 which provides:
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
(c) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder; or
…
(h) experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; or
(i) experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder; or
(j) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical worsening of posttraumatic stress disorder; or
…
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(h) to 6(o) apply only to material contribution to, or aggravation of, posttraumatic stress disorder where the person’s posttraumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
Other definitions
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one 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;
"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;
…
“a hostile or life-threatening environment” means a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:
experiencing or being under threat of artillery, missile, rocket, mine or bomb attacks;
experiencing or being under threat of nuclear, biological or chemical agent attack; or
being involved in combat or going on combat patrols;
…
"relevant service" means:
operational service under the VEA
…
Application
10. This Instrument applies to all matters to which section 120A of the VEA or section 338 of the MRCA applies.…
In Deledio, the Court said at 97, that with respect to the third stage, the hypothesis raised is a reasonable one:
… if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service
Paragraph 6 of the SoP sets out the factors one of which must as a minimum exist before a determination as to reasonable hypothesis can be made.
With respect to this third stage of the Deledio process, Perram J said in Hunter v Repatriation Commission [2010] FCA 145; 114 ALD 89 at 97 [13]:
The task at hand, therefore, is the testing of a hypothesis and not the examination of the correctness or otherwise of the premises upon which the hypothesis may rest. Consequently, the Tribunal is not to determine whether the material before it establishes the premises in question; rather it is to determine whether the material before it “points to some fact or facts (“the raised facts”) which support the hypothesis” … which is another way of saying that “the material before the Commission must raise some fact or facts which give rise to the hypothesis” … A corollary of those principles is that in this third stage, proof of the facts is not required nor, correspondingly, is the Tribunal called upon to make findings of fact.
The fourth stage of Deledio requires the Tribunal to make findings of fact to determine whether it is beyond reasonable doubt that the disease was not war-caused.
Prior to embarking upon the Deledio process, the Tribunal must determine the anterior issue as to whether Mr Cove suffers from PTSD. In Mines v Repatriation Commission [2004] FCA 1331; 40 AAR 238 at 247 [37] (Mines), Gray J said:
At the outset, one point needs to be understood. The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.
As to the standard of proof applicable at this anterior stage, Gray J in Mines goes on to say at 247 [38] – [39]:
The question, then, is what is the standard by reference to which the decision-maker is to determine whether the requisite injury, disease or death exists or has occurred, and whether operational service was rendered by the veteran? Section 120(1) of the VE Act appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service. Only if those facts exist can there be a question whether there is a reasonable hypothesis connecting them. It must follow that the question whether those elements exist is not part of the reasonable hypothesis, but must be determined antecedently to the formation of the hypothesis. This reasoning suggests that what applies to the determination of the question whether a finding should be made of injury, disease or death, and of operational service, should be approached by reference to s 120(4). In other words, the decision-maker should only make a finding that an injury, disease or death exists or has occurred, or that a veteran rendered operational service, if reasonably satisfied that those things occurred. By authority, it has been determined that this means satisfied on the balance of probabilities. See Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
Ordinarily, it will not be difficult to determine whether it is more probable than not that a veteran is suffering, or has suffered, an injury or disease. Even if there should be a conflict of medical evidence, the decision-maker will resolve that conflict in the ordinary way. There may be cases in which the very question whether an injury or disease has been suffered is itself bound up with the question of connection with war service. PTSD provides an example. It is only possible to know whether a person has suffered PTSD if it is known that the person has experienced a traumatic event. There are, therefore, two questions. One is whether the person is suffering from symptoms which, if a traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred. Of course, there might be more than one possible traumatic event, and there might be a question as to which of such events is responsible for the condition. If one or more of the possible traumatic events is not associated with war service, the decision-maker will have to resolve the question whether the symptoms result from the event or events associated with war service or the other event or events. For the purposes of the present discussion, that kind of case can be ignored. The important issue is the proper approach to determining whether a veteran is suffering from war-caused PTSD, when the occurrence of a traumatic event is unclear.
The discussion by Gray J of PTSD is apposite to the case before me. There are numerous events said to be traumatic. The Voyager collision event was no doubt traumatic, but it falls outside of the periods of operational service. There is a dispute as to whether those other events, which fall within the periods of operational service, were traumatic. The respondent contends that Mr Cove’s PTSD arose from the experience of the Voyager collision and that the other events did not contribute to it.
Guidance for the decision-maker considering a claim of PTSD is provided by Repatriation Commission v Budworth [2001] FCA 1421; 116 FCR 200 at 207-208 [19] (Budworth) where the Full Court of the Federal Court said:
… This means, we consider, that the decision-maker has 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 medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence … shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. 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 s120(1) as qualified by s120(3).
THE ISSUES
It follows that the issues for determination are whether:
(a)Mr Cove rendered operational service (not in dispute);
(b)Mr Cove suffers from symptoms consistent with a diagnosis of PTSD (on the balance of probabilities);
(c)there is material that points to a hypothesis connecting the PTSD with the circumstances of the periods of operational service (Deledio stage one - not in dispute);
(d)there is a relevant SoP (Deledio stage two - not in dispute);
(e)the hypothesis raised in Deledio stage one is reasonable by reference to the SoP, namely in this case that there is material that points to Mr Cove experiencing a category 1A or 1B stressor or living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset or clinical worsening of posttraumatic stress disorder (Deledio stage three);
(f)it is beyond reasonable doubt that the PTSD was not war-caused (Deledio stage four); and
(g)Mr Cove’s PTSD was a war-caused disease.
I note that the issues in (a) and (b) are anterior to the issues in (c) to (g) which will be considered as part of the Deledio factors.
Related issues for consideration are:
(a)If there is a diagnosis of PTSD, what was the date of its clinical onset or clinical worsening?
(b)Whether Mr Cove’s PTSD was caused by:
(i)the trauma of the Voyager collision and was not contributed to by the other events; or
(ii)a traumatic event experienced during operational service, jointly with the trauma of the Voyager collision.
CONSIDERATION OF THE ISSUES
There is no dispute that Mr Cove suffers from PTSD and that Mr Cove rendered operational service. Further, there is no dispute with respect to stages one and two of the Deledio process. The real contest between the parties is at stages three and four of the Deledio process.
A Diagnosis of PTSD?
Three psychiatrists provided medical reports and each agreed that Mr Cove suffers from PTSD related to events during his service. They further agreed that the PTSD was originally caused by the Voyager collision in 1964. I will return to their opinions with respect to the events of 1966. The respondent accepts that Mr Cove has been diagnosed with PTSD and IBS.[7]
[7] Respondent’s Statement of Facts, Issues and Contentions dated 5 July 2021, p 21 at [103].
I am satisfied on the evidence that Mr Cove has symptoms which amount to PTSD.
A Hypothesis connecting the PTSD with Operational Service?
With respect to stage one of the Deledio process, I am satisfied that there is material before me that points to a hypothesis connecting the PTSD with the circumstances of the periods of operational service. Mr Cove gave evidence of four traumatic events and said that he feared for his life and for those of others. In summary, the allegedly traumatic events (subsequent to the collision between the HMAS Voyager and the HMAS Melbourne) that Mr Cove suffered in 1966 can be described as:
(a)the fear of an attack in the harbour of Vung Tau;
(b)bombardments from ship to shore in Indonesian waters;
(c)the concern for his life from intercepting sampans and fishing vessels in Indonesian waters during the Confrontation; and
(d)climbing the mast to repair communication cables.
I will return to consider these events in more detail but for the purposes of a stage one Deledio analysis, I am satisfied that the material points to these traumatic events occurring during operational service. In particular, the material points to Mr Cove fearing for his life whilst high on the mast repairing cables and when patrolling the Indonesian waters and intercepting Indonesian vessels. The hypothesis is supported by the historical material referred to by Dr Palazzo, namely that at the relevant times and the relevant places the HMAS Vampire was engaged in the theatre of war which was the Vietnam war and the Confrontation. As a part of the war, the ship visited Vung Tau harbour and carried out anti-interdiction patrols and some bombardments.
Without determining on the balance of probabilities the date of the onset of the PTSD, I am satisfied that the material points to symptoms arising after these events took place in 1966. Dr Martin said in his January 2015 report that Mr Cove noted psychiatric symptoms since the late 1970s. Mr Cove confirmed in his June 2016 statement that he described his symptoms to Dr Martin. Dr Sundin in her December 2017 report (as qualified by her evidence) said that Mr Cove’s distressing psychological symptoms onset in the mid to late 1970s. Dr Ewer said in his May 2021 report that it was difficult to say when Mr Cove first had sufficient symptoms to be diagnosed with PTSD and he could not say “that the PTSD was first diagnosable before 17 February 1966 but it is probably more likely that it was”. It follows that a hypothesis of clinical onset of PTSD post 1966 is consistent with all three of the psychiatric experts.
The respondent did not dispute the hypothesis of a connection between Mr Cove’s PTSD and his operational service and I consider the hypothesis to be made out. Therefore, stage one of the Deledio process is satisfied.
A Relevant SoP?
It is not in dispute that the relevant SoP concerning posttraumatic stress disorder is No. 82 of 2014. Therefore stage 2 of the Deledio process is satisfied.
A Reasonable Hypothesis?
Stage three of Deledio requires consideration as to whether the hypothesis raised is a reasonable one by reference to the SoP. Section 120A(3) requires that the SoP upholds the hypothesis.
Paragraph 6 of the SoP sets out the factors, one of which must exist as a minimum before a determination as to reasonable hypothesis can be made. Relevantly for this case, the hypothesis must contain one or more of the following factors from paragraph 6 of the SoP:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
(c) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder; or
…
(h) experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; or
(i) experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder; or
(j) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical worsening of posttraumatic stress disorder;
Proof of a factor on the balance of probabilities is not required; rather, the question at this stage is whether the material before the Tribunal points to or raises some fact or facts which give rise to the reasonableness of the hypothesis.
As stated above, the hypothesis of Mr Cove in terms of the relevant SoP is that his PTSD is connected with his operational service. A reasonable hypothesis (thereby satisfying stage three of Deledio) is one that is consistent with the template of the SoP.
I have already found with respect to stage one of the Deledio process that there is a hypothesis connecting Mr Cove’s PTSD with his operational service. I adopt (and will not repeat) what I have said with respect to stage one for the purposes of considering stage three of the Deledio process.
A category 1A stressor includes experiencing a life-threatening event. A category 1B stressor relevantly includes killing or maiming a person, being an eyewitness to a person being killed or critically injured or viewing a corpse.
With respect to a category 1A stressor, the evidence given by Mr Cove to the Tribunal was that he feared for his life at numerous times whilst on operational duty. He referred to three specific events, which he considered were life-threatening events:
(a)escorting the HMAS Sydney into the Vietnamese harbour of Vung Tau;
(b)intercepting sampans and fishing vessels in Indonesian waters during the Confrontation; and
(c)climbing the mast to repair communication cables.
With respect to a category 1B stressor, Mr Cove gave evidence about onshore bombardments and his feelings of concern that civilian lives may have been lost. I can immediately reject this part of the claim. The evidence does not point to Mr Cove experiencing a category 1B stressor because there was no suggestion that he was an eyewitness to a person being killed or injured, or that he viewed a corpse or injured casualty. This leaves consideration only of a category 1A stressor.
Does the evidence point to Mr Cove experiencing a life-threatening event at Vung Tau Harbour?
Mr Cove was aboard the HMAS Vampire when it was anchored offshore for 2 days at Vung Tau Harbour. He was told they could be attacked and that divers could try and damage the ship. Charges were let off to deter such an attack. Mr Cove’s evidence was confirmed by Dr Palazzo who said that naval ships in Vung Tau harbour were at risk of attack from Viet Cong underwater swimmers. Mr Cove could see bombs going off and explosions onshore and it was then that he realised they were actually at war. In these circumstances Mr Cove felt that his life was at risk.
The evidence points to a genuine threat of attack, but it does not point to Mr Cove actually experiencing a life-threatening event. Mr Cove did not say that the HMAS Vampire was attacked by divers or that it came under fire. This distinction between experiencing the event and experiencing the threat of the event was referred to by Reeves J in Border v Repatriation Commission [2010] FCA 1430; 191 FCR 163 at 176 [54] (Border) who said that:
the words of subpara (a) of the definition of a category 1A stressor make it necessary to assess whether the event experienced by the veteran was a life-threatening event, rather than whether the threat itself was.
Further, at 180 [67] Reeves J said:
It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.
The event of being in Vung Tau harbour, aware of the threat of divers, and seeing explosions on the shore did not constitute a life-threatening event. My conclusion is fortified by the fact that these events were not recorded as part of the history taken by Dr Martin in November 2014 and set out in his report dated 8 January 2015. Further, Mr Cove did not mention the threat of divers in his written statement of 16 June 2016. Dr Sundin’s report of December 2017 notes that Mr Cove was aware of explosions on the Vietnamese mainland but also does not refer to divers.
Mr Cove’s oral evidence was that he felt his life was at risk when at Vung Tau harbour. Judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, Mr Cove, the event was not capable of being a life-threatening event. The explosions Mr Cove saw were on shore. The HMAS Vampire was not fired upon and there was no reasonable basis to believe there were divers nearby the vessel.
I conclude that the material before me with respect to Mr Cove’s experiences in Vung Tau harbour does not point to the existence of a category 1A stressor.
Does the evidence point to Mr Cove experiencing a life-threatening event when intercepting sampans and fishing vessels?
Mr Cove was aboard the HMAS Vampire when it patrolled Indonesian waters during the Confrontation seeking to intercept and board sampans and other suspicious vessels that they were told were “intent on sinking us”. He was never a part of any boarding party, but they approached a number of boats and sailors boarded them. He recalls one occasion when a boarding party captured persons he assumed were the enemy and brought them on board the ship. He was standing very close to one of them. They were not armed, nor did they look like soldiers. They looked like they were fishermen or smugglers. He said he was concerned for his life during these interceptions but that no weapons were ever discovered on these boats.
The circumstances of patrolling the waters had the potential to give rise to a life-threatening event if, for example, one of the apparent fishing vessels turned out to be a military vessel or was booby trapped or weaponised. However, there was no evidence that any of these potential events ever occurred. The evidence points to a potential threat of harm and even death, but it does not point to Mr Cove actually experiencing a life-threatening event. The boats that were intercepted were not booby trapped and no weapons were found on them. Dr Palazzo said that they were invariably illegal fishermen or smugglers but he added that:
… the seriousness of these activities should not be discounted. The Vampire’s crew were at action stations and had boarding parties standing by. It was only after the completion of a search of a stopped boat that the lack of threat would be perceived.
There was no suggestion that the HMAS Vampire ever encountered Indonesian infiltrators or that it engaged in any form of combat with these vessels. It was not Mr Cove’s role to board the vessels and the only person he came close to was not armed and posed no threat. The evidence does not point to a life-threatening event. I refer again to the distinction between experiencing the event and experiencing the threat of the event.[8] The evidence points to the latter rather than the former.
[8] Border v Repatriation Commission [2010] FCA 1430; 191 FCR 163. at 180 [67].
Judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, Mr Cove, this event was not capable of being a life-threatening event. The circumstances experienced by Mr Cove whilst on patrol did not give rise to a severe traumatic event in the nature of a life-threatening event. I conclude that this material with respect to Mr Cove’s experiences intercepting sampans and fishing vessels does not point to the existence of a category 1A stressor.
Does the evidence point to Mr Cove experiencing a life-threatening event when climbing the mast to repair cabling?
Mr Cove gave evidence that on four or five occasions he was required to climb the mast of the ship in open waters to repair communication cabling. He described how, in order to repair any snapped cable, he had to climb up the mast and reach out, grab the cable and resplice it to a new shackle, and then reach back out to reattach it. Sometimes he had to undo his harness so he could reach out towards the damaged cable. It took between 5 and 30 minutes and was not easy when the ship was rocking. He was about 10 metres high. He said he felt fearful of an attack and particularly vulnerable up the mast.
Dr Sundin’s report included a statement from Mr Cove about how this made him feel:
He describes his time up the mast as inducing fear, stating “I was concentrating mostly on not falling”. He said that he felt exposed and at risk. He described “hanging on for dear life trying to catch the cable”. He said that while he was supplied with a safety harness to use that it was necessary to release the harness in order to catch the cable. He felt at constant risk of falling from the mast during these repairs.
The evidence points to Mr Cove experiencing a life-threatening event when climbing up the mast and repairing the cable, sometimes without a harness whilst in hostile waters.
Dr Sundin opined that this event was one of a number of events which had a cumulative effect and impacted adversely on Mr Cove’s psychological wellbeing. Dr Sundin said that his psychological condition was “further aggravated by repeated trips up the mast to repair broken cables, often in unsettled waters, as a result of which he felt in constant fear of falling”. I note that Dr Ewer in his oral evidence accepted that if Mr Cove did not have his safety harness on while repairing cables then it would be a category 1A stressor.[9]
[9] Transcript dated 3 August, p 120 at line 37.
Judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, Mr Cove, this event was capable of being a life-threatening event. The circumstances experienced by Mr Cove whilst on the mast, high above the deck reaching out without a harness to repair the communication cables, gave rise to a severe traumatic event in the nature of a life-threatening event. I conclude that this material points to the existence of a category 1A stressor.
Did Mr Cove experience a category 1A stressor before the PTSD?
Having found a category 1A stressor I must now consider, as part of Deledio stage three, whether there is evidence that points to Mr Cove experiencing that stressor before the clinical onset or the clinical worsening of the PTSD.[10]
[10] Statement of Principles concerning posttraumatic stress disorder (No. 82 of 2014) (Cth) at paras 6(a) and 6(b).
The respondent contends that the whole of the material points to Mr Cove suffering PTSD prior to February 1966, arising out of the collision between the HMAS Melbourne and HMAS Voyager in 1964. Further, the respondent contends that the whole of the evidence does not point to a clinical worsening of Mr Cove’s PTSD at any identifiable point in time.
The evidence is vague as to when Mr Cove first exhibited symptoms of his PTSD. This is not surprising given how long ago it was. Dr Martin said in his January 2015 report that Mr Cove has noted psychiatric symptoms since the late 1970s. Dr Sundin said in her December 2017 report that Mr Cove described symptoms consistent with an acute stress reaction in the immediate aftermath of the Voyager disaster but that his distressing psychological symptoms onset in the mid to late 1970s. She said that Mr Cove’s service in Indonesian waters and Vietnamese waters aggravated the psychiatric disorder which had originally onset in the aftermath of the Voyager disaster. Dr Ewer said in his May 2021 report that Mr Cove had intrusive recollections soon after the 1964 collision and developed a range of other psychiatric symptoms after the collision. Dr Ewer said it is difficult to say when Mr Cove first had sufficient symptoms to be diagnosed with PTSD but that it was probably after 1964 and it may have been before February 1966. He could not be more specific because Mr Cove had difficulty recalling when symptoms emerged.
Each of the psychiatric experts were pressed at the hearing with respect to the issue of when Mr Cove’s PTSD first became diagnosable and if and when there was a clinical worsening.
Dr Martin said that Mr Cove’s symptoms occurred in the late 1960s, after his service in 1966. At the hearing, he maintained his opinion that the clinical onset of the PTSD was after the events of 1966 and he could not say that there was a clinical worsening but found it “likely” that the events in operational service contributed to the PTSD. Dr Sundin opined that Mr Cove likely suffered from subsyndromal PTSD immediately after the Voyager collision but that the condition fully developed later. She said that when she interviewed Mr Cove he was able to talk to her about his emotional reaction to subsequent events in Vietnam and Indonesia, which made it more than likely, in her opinion, that those events had been relevant to the aggravation of the PTSD.[11] She said that Mr Cove’s distressing psychological symptoms onset in the mid to late 1970s. Dr Ewer did not change his opinion when giving oral evidence that it was difficult to say when the PTSD onset but that it may have been before February 1966.
[11] Transcript dated 2 August 2021, p 38 at lines 31 – 34.
Dr Sundin, when under cross examination, explained the difficulty about being precise about the presentation of symptoms so as to determine when the PTSD became diagnosable. She said:[12]
Yes, I mean I think it’s important that you understand the nature of PTSD and I think Dr Ewer went into this in some detail in his report, which is that there is a cumulative impact from stressors which is relevant to the evolution and expression of PTSD and this appears to be the case in Mr Cove. But the other element which makes this situation entirely difficult for myself, Dr Ewer and Dr Martin et cetera is that you’re asking us to obtain a history from a man for events for more than 50 years ago. And I would say that Mr Cove really did his best but there’s an understandable paucity of memory, which all of us have [to] acknowledge. And I think it’s entirely difficult for the tribunal at this terribly remote date to try and tease this out to the level of specificity that you seem to be trying to do.
[12] Transcript dated 2 August 2021, p 39 at lines 3-14.
I consider that the evidence from the psychiatric experts is largely consistent. The evidence of Dr Martin points to a finding that the clinical onset of Mr Cove’s PTSD was after the events of 1966. The evidence from Dr Sundin and Dr Ewer points to a finding that the clinical onset may have been before the 1966 events (i.e. soon after the Voyager disaster in 1964) but that there was a clinical worsening (or aggravation) after the events of 1966. Either way, the hypothesis is reasonable because it fits within the template of the SoP by reference to paragraph 6(a) or paragraph 6(h). I consider that there is evidence before me that points to both of these possibilities. It follows that at least one (in fact two) of the factors in clause 6 of the SoP are related to Mr Cove’s operational service.
Was Mr Cove living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset or clinical worsening of PTSD?
I reject Mr Cove’s submission that he was living or working in a hostile or life-threatening environment for a period of at least four weeks. This finding flows from similar considerations of the evidence that lead me not to accept the interceptions of sampans and fishing vessels as category 1A stressors. As found above, the evidence points to Mr Cove experiencing a life-threatening event whilst on the mast repairing the communication cables but otherwise the evidence does not point to a hostile or life-threatening environment for a period of at least four weeks. His ship was not attacked and never engaged in combat activity with the enemy. There was a two day period of heightened risk in Vung Tau harbour, but Mr Cove was not in a situation or setting for at least four weeks that could be characterised by a pervasive threat to life or bodily integrity.
Conclusion as to reasonable hypothesis
I conclude that Mr Cove experienced a life-threatening event whilst on operational service and before the clinical onset or worsening of his PTSD. Proof of the facts constituting the life-threatening event is not required to establish this as a reasonable hypothesis but there must be material before the Tribunal that pointed to him experiencing such an event. Nor is proof required that the life-threatening event pre-dated the clinical onset or worsening of his PTSD. Again, there must be material before the Tribunal that points to the clinical onset or worsening of the PTSD post-dating the life-threatening event. I find that there is material pointing to those facts in respect of the events climbing the mast during operational service. Stage three of the Deledio process is satisfied.
Any Reasonable doubt that the PTSD was not War-caused?
The fourth stage of the Deledio process requires consideration under s 120(1) as to whether I can be satisfied beyond reasonable doubt that the PTSD was not war-caused. This imposes a “reverse onus of proof on the criminal standard”.[13] It is only at this stage of the process that the Tribunal is required to find facts from the material before it. In Byrnes v Repatriation Commission [1993] HCA 51; 177 CLR 564 at 571, the High Court said of the fact-finding exercise under s 120(1):
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.
[13] Repatriation Commission v Budworth [2001] FCA 1421; 116 FCR 200; 207-208 at [19].
The facts supporting the reasonable hypothesis referred to above are that on four or five occasions Mr Cove experienced a life-threatening event when climbing the ship’s mast to repair communication cables and that these traumatic events took place before the clinical onset or clinical worsening of his PTSD.
The respondent asserts that the supporting facts can be disproved beyond reasonable doubt and that there are other facts, inconsistent with the hypothesis.[14] The respondent says that the relevant facts are the same sorts of facts considered under Deledio step 3 in the context of whether the whole of the material pointed to a reasonable hypothesis.
[14] Transcript dated 4 August 202, pp 182-183.
For the respondent’s contention to succeed, I would need to be satisfied beyond reasonable doubt that the evidence does not support a finding that:
(a)Mr Cove experienced a life-threatening event or events when climbing the ship’s mast to repair communication cables; or
(b)Mr Cove’s experience on the mast took place before the clinical onset or worsening of his PTSD.
For the reasons that follow I am not so satisfied.
Mr Cove gave comprehensive oral evidence before me by reference to a diagram of the HMAS Vampire about the positioning of the mast and the cables. He described how he needed to climb up the mast and reach out to the damaged cable and then repair or “splice” it and re-attach it. [15] This process could take anywhere between 10 or 15 minutes and half an hour depending on the weather. He described how the rocking of the ship made the cables fly away from him as he was trying to grab them. He said that “it’s not so easy to splice when you’re (indistinct) around the top of the mast”. He said that he went up the mast on four or five occasions in the June/July period. He estimated that he was 10 metres high on the mast and that if he fell, he would land on the deck where there were protrusions of metal or in the ocean. He said he had a harness which he used whilst splicing but he took it off to reach out to grab the cable.
[15] Transcript dated 2 August 2021, pp 18-20.
Under cross examination, Mr Cove gave consistent evidence. He was asked about how he reached out from the mast and he responded:[16]
Well, I had basically crawled across holding on with one hand and detaching the shackle, crawl back and splice and then crawl back out and reattach the shackle with the spliced cable.
[16] Transcript dated 2 August 2021, p 22.
Mr Cove gave similar evidence at the first hearing of the Tribunal on 25 January 2018: [17]
It wasn’t a job that I was trained for, I happened to be probably the youngest person on the bridge at the time. The communication cable would snap and the Captain ordered me up to splice it and I did a good job so that became my job.
…
The mast would be approximately 10 metres above the bridge, angle lines going every which way which you had to negotiate. We did – I did have a safety harness which I would attach whilst splicing, but couldn’t attach it while attempting to retrieve the cable in question.
…
Yes, in order to retrieve the – the cable, we are rocking around the – the ship is moving and the cable would swing away and you’d sort of have to reach out to grasp it. So then once – once you – once I managed to retrieve it I would reattach the harness.
…
I felt exposed, I felt scared. The ship is moving and if I was to slip I would – I would land either on the deck or in the ocean.
[17] Transcript dated 25 January 2018, p 18.
This evidence from Mr Cove is consistent with Dr Sundin’s report dated 12 December 2017 in which she wrote:
Mr Cove informed me that the issue pertaining to the communication wires relate to his time on HMAS Vampire during the interdiction service off the Malaysian coast. He explained that during this month of service he had been shifted to working on the bridge signals office. It was his role to receive and type up signals for the Captain as they came through. He described the bridge of the Vampire is an open bridge which added to Mr Cove’s sense of vulnerability not only to weather but to danger in general.
Mr Cove explained that one of his jobs whilst serving on the bridge was to repair corroded communication cables. He pointed out that the sea air exposure had caused these cables to snap very easily. Repair of the cables required him to go up the mast, retrieve a wire, splice it and rehouse it. This job would take between 5 to 30 minutes. Mr Cove believes that he was sent up to repair corroded communication cables on approximately five occasions in unsettled weather when the sea was choppy. He describes his time up the mast as inducing fear, stating “I was concentrating mostly on not falling”. He said that he felt exposed and at risk. He described “hanging on for dear life trying to catch the cable”. He said that while he was supplied with a safety harness to use that it was necessary to release the harness in order to catch the cable. He felt at constant risk of falling from the mast during these repairs.
The respondent contended that I should not accept this evidence because Mr Cove had not included any mention of climbing the mast in his written statement of 16 June 2016 and because he only told Dr Martin and Dr Ewer of one event when he climbed the mast to repair communication cables and was scared by a low-flying jet. The parties agree that the incident with the jet took place outside of the periods of operational service. I am not prepared to reject Mr Cove’s comprehensive account of his other experiences repairing cables high up on the mast merely because he failed to mention these in his earlier statement or when seeing the psychiatrists (although I note that Dr Ewer accepted in his oral evidence that there were other occasions when Mr Cove climbed the mast to repair cables).[18] I am certainly not satisfied beyond reasonable doubt that these events did not occur or that they were not life-threatening events. Mr Cove gave detailed and consistent reports of these events on three separate occasions, namely to Dr Sundin on 12 December 2017, at the first hearing of the Tribunal on 25 January 2018 and at the hearing before me on 2 August 2021. I accept the evidence of Mr Cove who was an honest and truthful witness who did his best to recall events from a long time ago. Stage four of Deledio is satisfied.
[18] Transcript dated 3 August 2021, p 116.
The respondent also contended that the onset of Mr Cove’s PTSD pre-dated the events of 1966 and therefore could not have been caused by them. I have analysed the opinion evidence from the three psychiatrists above and I am not satisfied beyond reasonable doubt that his PTSD manifested itself prior to the events of 1966. Dr Martin said that Mr Cove’s symptoms occurred in the late 1960s, after his service in 1966. He maintained his opinion that the clinical onset of the PTSD was after the events of 1966 and he found it “likely” that these events in operational service contributed to the PTSD. Dr Sundin opined that Mr Cove likely suffered from subsyndromal PTSD immediately after the Voyager collision but that the condition fully developed later. Dr Ewer said in his report that it was difficult to say when Mr Cove first had sufficient symptoms to be diagnosed with PTSD. He could not be specific because Mr Cove had difficulty recalling when symptoms emerged. Indeed, the evidence suggests that Mr Cove’s PTSD onset after 1966, noting that none of the psychiatrists obtained a history of the symptoms necessary for a diagnosis of PTSD during the period between 1964 and 1966.
I consider that either hypothesis, namely that the traumatic events of 1966 aggravated or contributed to Mr Cove’s PTSD in a material sense, was not disproved beyond reasonable doubt.
CONCLUSION
Pursuant to s 9 I find that Mr Cove’s PTSD is a war-caused disease because it resulted from an occurrence that happened while he was rendering operational service. That occurrence happened four or five times when Mr Cove risked his life in the hostile waters off Indonesia during the Confrontation by climbing high up the mast and repairing the damaged communication cables. This traumatic event together with the earlier traumatic event of the HMAS Voyager collision caused Mr Cove to suffer from PTSD. Mr Cove has become incapacitated from his war-caused PTSD and under s 13, the Commonwealth is liable to pay him a pension by way of compensation.
The order of the Tribunal is to set aside the decisions of the Veterans’ Review Board dated 16 February 2016 and 23 June 2017 and substitute a decision that Mr Cove is entitled to a pension under Part 2 of the Veterans’ Entitlements Act 1986 (Cth) for his PTSD and irritable bowel syndrome.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
..[SGD]...........................................................
Associate
Dated: 1 September 2021
Dates of hearing: 2, 3 and 4 August March 2021 Counsel for the Applicant: M. Lawrence Solicitors for the Applicant: Cockburn Legal Counsel for the Respondent: S. Wright Solicitors for the Respondent Australian Government Solicitor
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