Davis and Repatriation Commission
[2004] AATA 980
•21 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 980
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/161
VETERANS' APPEALS DIVISION )
Re BEN DAVIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date21 September 2004
PlaceBrisbane
Decision
The Tribunal affirms the decision under review.
[Sgd]
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - disability pension – operational service with Royal Australian Navy - diagnosis of depressive disorder – application of Statements of Principles – no reasonable hypothesis of relevant relationship to service raised for depressive disorder – decision affirmed
Veterans’ Entitlements Act 1986 ss 6C, 7, 14, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
21 September 2004 Mr RG Kenny, Member Background
1. Ben Davis (the applicant) served in the Royal Australian Navy from 2 July 1964 until 31 July 1976. That period of overall service included six return voyages from Australia to South Vietnam in 1968 and 1969 on board HMAS Sydney. The purpose of those voyages was to carry Australian troops and equipment to and from Vung Tau Harbour. Mr Davis contends that he now suffers from depressive disorder and attributes causation of this condition to matters that arose during those voyages. In particular, he nominated these as being the detonation of scare charges whilst the ship was in Vung Tau Harbour and his witnessing the state of Australian soldiers on board the vessel when returning to Australia.
2. Mr Davis lodged a formal claim with the Repatriation Commission (the respondent) for the acceptance of “? post traumatic stress disorder/anxiety/ depression” on 16 August 2001 and this followed the lodgement of an informal claim for those conditions on 9 August 2001. The claim, made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), was rejected by a delegate of the respondent on 1 November 2001 and that decision was affirmed by the Veterans’ Review Board on 20 December 2002. On 26 February 2003, Mr Davis sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mr Davis was represented by Mr R Clutterbuck of counsel and the respondent was represented by Mr M Smith. The following material was tendered and taken into evidence:
Exhibit 1:the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents – T1 to T6);
Exhibit 2:a medical report, dated 17 May 2004, by Dr Janis Carter, psychiatrist;
Exhibit 3:a further report, dated 21 May 2004, from Dr Carter;
Exhibit 4:a statement, dated 2 May 2003, by the applicant;
Exhibit 5:a bundle of clinical notes from Dr L King and Dr A Ferris, general practitioners, and reports from Dr Jones, physician;
Exhibit 6:a bundle of documents from WorkCover, Queensland; and
Exhibit 7:an in-patient record, dated February 1974.
Issues and Legislation
4. It is not disputed that Mr Davis suffers from depressive disorder or that this is the only psychiatric condition relevant to this matter. This was confirmed by Dr J Carter, a psychiatrist who gave evidence on his behalf, and also by Dr V Venugopalan, a psychiatrist who gave evidence for the respondent. Neither is there dispute about the nature or extent of the service rendered by Mr Davis in the Royal Australian Navy. This included a period of defence service as provided for in Part IV of the Act and it was conceded by Mr Clutterbuck that this service was not relevant to the applicant's claim. It also included the following periods of operational service and eligible war service, as defined in sections 6C and 7, respectively, of the Act, which coincide with the voyages, noted above, between Australia and South Vietnam:
17 January 1968 -16 February 1968
27 March 1968 -26 April 1968
21 May 1968 -13 June 1968
13 November 1968 -28 November 1968
8 February 1969 - 25 February 19698 May 1969 - 30 May 1969.
5. The issue for the Tribunal is whether Mr Davis’ depressive disorder is related to that service in the sense of being a war-caused condition. In that regard, subsection 9(1) of the Act, insofar as it is relevant to this matter, provides that, for the purposes of the Act, the condition will be taken to be war-caused if:
§it resulted from an occurrence that happened while Mr Davis was rendering operational service; or
§it arose out of, or was attributable to, any eligible war service rendered by him.
6. The standard of proof applicable to the determination of entitlement claims for operational service is set out in subsection 120(1) of the Act which reads:
“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.”
7. The application of that provision is affected by the terms of subsection 120(3) of the Act and section 120A of the Act which require that consideration be given to any relevant Statements of Principles which have been published by the Repatriation Medical Authority (RMA).
Mode of Applying the Legislation: the Deledio steps
8. In circumstances where operational service has been rendered, a four step procedure for determining causation was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92. The first of these requires that there be material which points to an hypothesis connecting the claimed condition with service. In this case, the contentions by Mr Davis, concerning the scare charges in Vung Tau Harbour and his observations of troops on HMAS Sydney on returning to Australia meet that requirement and, accordingly, there are two hypotheses to be considered. The second of the four Deledio steps requires identification of the relevant Statement of Principles. In this case, this is Instrument No 58 of 1998 for depressive disorder. The third Deledio step requires a consideration of whether either of the hypotheses raised is a reasonable one and this will be so if it fits the template provided by any factor and associated definition in that Statement of Principles. In this case, the relevant factor reads:
“5(b) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;”
“Severe psychosocial stressor” is defined in the Statement of Principles to mean:
“...an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
9. Only if the hypothesis is reasonable will it be necessary to consider the fourth of the Deledio steps. This would require a finding that the claimed condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Step 3: Reasonableness of Hypotheses
first hypothesis: scare charges
10. The first hypothesis relates to the use of scare charges and it was accepted by Mr Clutterbuck and Mr Smith that these were explosive devices which were routinely and periodically detonated in the water around Australian Navy vessels whilst in Vung Tau Harbour as a means of deterring the prospective activities of enemy divers. Mr Davis said that, on his first voyage to Vietnam, he had become aware, from discussions with other crew members, that scare charges would be used in that manner but that no specific training or information had been given to him. His Navy mustering was shipwright which meant that he was responsible for general maintenance on HMAS Sydney and he said that, when he first experienced the detonation of a scare charge, he was performing his duty below decks and that the sound caused him to become extremely alarmed. He said that he immediately went on to the deck to ascertain what had happened. He said that, thereafter, he became accustomed to hearing scare charges and that, when he heard one, he would always go up on the deck to see what was happening.
second hypothesis: observation of troops
11. The second hypothesis relates to the effect on Mr Davis of his observations of the condition of Australian troops on HMAS Sydney. He said that he was concerned about them because he noted a significant change in the demeanour of the troops returning to Australia when compared with that of the troops who were on voyage to Vietnam. He described a sense of taking young men to Vietnam and bringing old men back to Australia. He said that he found it difficult to cope with this and that he often felt anxious about it and frequently attended the sick bay on the Sydney with stomach problems. He said that he was treated for anxiety and an upset stomach and he also said that these feelings of anxiety had stayed with him ever since that part of his Navy service.
material relating to hypotheses
12. Mr Davis described his experiences concerning the scare charges and his observations of Australian military personnel to psychiatrists Dr Rosalie Troup, who provided a report, dated 27 August 2002, and Dr Carter, who gave evidence. Dr Troup expressed the opinion that Mr Davis had developed a depressive disorder while he was in the Navy transporting troops and she said that it had continued since that time. In her evidence, Dr Carter referred to the service medical records of Mr Davis and to his treatment, whilst serving on the Sydney, for a range of stomach problems, for malaise and for mild anxiety. She said that these records confirmed that he was suffering from anxiety at the time. She noted that the applicant had been prescribed the medication Stelazine by the Sydney’s treating medical officer, Dr Bayliss, and she described this as a “powerful tranquilizer” which she would only utilize for a serious condition such as psychosis. She said that the applicant had suffered from anxiety and depression ever since his Navy service and said that it was causally associated with his experiences relating to the scare charges and his observations of Australian soldiers. It was put to Dr Carter that the applicant’s service medical records made no reference to depression but she said that anxiety and depression usually occurred together and that the anxiety is often embedded in the depressive state.
13. In July 2001, Mr Davis was taken to the emergency department of St Vincent’s Hospital in Toowoomba. He had suffered a physical collapse at his work on that day and he was seen by Dr Venugopalan who provided psychiatric treatment to him over the next three months including eight consultations. Dr Venugopalan completed reports on 27 September 2001 and 11 October 2001 in relation to Mr Davis’ psychiatric state. The first of these was prepared for the purposes of a WorkCover claim made by Mr Davis and the second report was made in relation to his present claim under the Act. Dr Venugopalan said that the applicant had described feeling anxious on his voyages on the Sydney but had not described any specific incidents which caused him distress. Dr Venugopalan expressed the opinion that the applicant's depression had resulted from a range of stressors in his life including those in the workplace and, in particular, he referred to incidents in 1999 when both of Mr Davis’ parents died. He also described the death of his step-daughter’s child in that year and associated court proceedings involving the prosecution of the child’s father.
14. In evidence (Exhibit 5) were reports from the applicant's general practitioners, Dr A Ferris and Dr L King. Dr Ferris treated Mr Davis for epigastric difficulties in 1986 and prescribed the medication Sinaquan. Dr King’s notes relate to the period from 1994 to 1999 and, on 13 January 1999, the applicant is noted to be suffering from depression. Dr King's notes also reveal that the applicant's mother had passed away on 14 January 1999 although Mr Davis said, in his evidence, that she had been in St Vincent’s hospital for a period. In his evidence, Dr Venugopalan conceded that he did not have the reports of Dr Ferris or Dr King when he prepared his reports but said that these would not change his view that the depressive state from which Mr Davis suffers had its genesis sometime in the 1990s. Dr Venugopalan was referred to the medication Stelazine which was prescribed whilst Mr Davis was serving on HMAS Sydney and to the medication prescribed by Dr Ferris. He agreed with the evidence of Dr Carter that Stelazine could be used to treat serious conditions such as psychosis. However, he also said that, in that situation, the dosage would be much greater than the 2 mg recorded in the service documents as having been prescribed for Mr Davis. He said that the medication was not an antidepressant, forms of which were readily available at the time, but was used to treat anxiety. His evidence was to the same effect in respect of Sinaquan and he described the dosage taken by Mr Davis in 1986 as being low and consistent with treatment for sedation rather than depression.
experiencing a severe psychosocial stressor
15. An analysis of the experiencing of a severe psychosocial stressor involves a consideration of both objective and subjective elements. In White v Repatriation Commission [2004] FCA 633, Spender J put the matter thus (at par 30):
“In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
16. I do not accept the submission that Mr Davis’ experiences with the scare charges point to a situation where, objectively, a reasonable person in the position that the applicant claimed he was in on those occasions would experience feelings of substantial distress. Also, I do not accept that, subjectively, the scare charge exposures point to a situation where feelings of substantial distress were experienced by the applicant at the time. It was the evidence of Mr Davis that only the first scare charge incident evoked alarm but it was also his evidence that he had some general understanding of the nature of the use of scare charges before the ship entered Vung Tau Harbour. After hearing the charge, he went up on deck to see what was happening. His reactions reflect what would be expected of a person with three and a half years of naval service behind him. With nothing more, this does not approach the examples of a severe psychosocial stressor given in the definition in the Statement of Principles, namely, being shot at, death or serious injury of a close friend or relative, assault, severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
17. Mr Clutterbuck referred to the treatment given to Mr Davis whilst on HMAS Sydney for stomach problems and also mild anxiety and submitted that this was a reaction to the scare charge exposure. However, this treatment was provided to the applicant in the period commencing on 6 January 1969 to 3 February 1969 and also in the period from 10 April 1969 to 22 April 1969. In the first of those periods, Mr Davis was not undertaking operational service. The second period does coincide with a period of operational service but this was during the fifth of his six return voyages between Australia and South Vietnam and some twelve months after he first entered Vung Tau Harbour.
18. In relation to Mr Davis’ observations of the state of Australian troops, this, again, does not point in any objective or subjective manner to an identifiable occurrence that evokes feelings of substantial distress. As noted above, his attendances for medical treatment followed four previous return voyages with no evidence of a manifestation of anxiety. Mr Davis may well have made the observation that he claimed but the making of such observations falls well short of material which points to actual feelings of substantial distress as indicated in the definition of that terms in the Statement of Principles.
clinical onset within two years
19. Even if there were a severe psychosocial stressor in this matter, the material before the Tribunal must point to the clinical onset of depression within two years of a service-related element of causation in order to meet the requirements of the factor and associated definition in the Statement of Principles. The term clinical onset has not been defined by the RMA but the requirement will be met if an applicant describes symptoms to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670, Re Sandiford and Repatriation Commission (1998) 27 AAR 210 at 217 and Repatriation Commission v Cornelius [2002] FCA 750. Dr Carter and Dr Troup have done that in this case and, accordingly, there is some medical evidence which points to the clinical onset of depression within the time-frame required by the Statement of Principles. Dr Venugopalan has advanced a different opinion. To make a decision as between those competing views would be to engage in fact-finding and that is not a process which is applicable when considering the third of the Deledio steps.
20. Because of the view I have taken of the evidence concerning the experiencing of a severe psychosocial stressor, the factor in the Statement of Principles is not met and neither hypothesis advanced by Mr Clutterbuck is reasonable. This means that Mr Davis’ depressive disorder is not war-caused and it is unnecessary to apply step 4 of the Deledio procedure. Nevertheless, in the event that I am in error in respect of the psychosocial stressors relied on in this matter, I have more than a reasonable doubt that there was, in fact, a clinical onset of depression within two years of any aspect Mr Davis’ operational service. In that regard, I accept the evidence of Dr Venugopalan. Depression is not referred to in the service medical records. A diagnosis of depression is made in the 1990s at a time when significant events were occurring in Mr Davis’ family and working life. The applicant was prescribed medication in 1969 while on operational service and I accept that this has potential for use in relation to severe psychiatric states. Nevertheless, I also accept the evidence of Dr Venugopalan that the dosage level prescribed at that time, and also in 1986 by Dr Ferris, was such as to indicate that the medication was not prescribed for treatment of depression.
absence of reasonablene hypothesis
21. The lack of a severe psychosocial stressor in this matter means that the material does not fit the template of the Statement of Principles in the sense referred to in Deledio. This means that the requirements of the Statement of Principles are not met and neither of the hypotheses advanced on behalf of Mr Davis is reasonable.
22. It follows that I am satisfied beyond reasonable doubt that Mr Davis’ claim for acceptance of depressive disorder as being war-caused does not succeed.
defence service
23. No contentions were raised in respect of Mr Davis’ defence service and I am reasonably satisfied that his depressive disorder is not related to any aspect of that service.
Decision
24. The Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 9 September 2004
Date of Decision 21 September 2004
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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