Dawson and Repatriation Commission
[2005] AATA 718
•29 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 718
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/764
VETERANS' APPEALS DIVISION )
Re KEITH DAWSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date29 July 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................[Sgd]......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether the veteran’s conditions were war caused – PTSD – impotence – lumbar spondylosis – anxiety disorder
Veterans’ Entitlements Act 1986 (Cth) s 9, 119, 120, 120A, 196B
Bull v Repatriation Commission (2001) 66 ALD 271
Byrnes v Repatriation Commission (1993) 177 CLR 564
Devereaux v Repatriation Commission [2001] AATA 557
East v Repatriation Commission (1987) 16 FCR 517
Hillier v Repatriation Commission [2004] AATA897
Morgan v Repatriation Commission [2005] AATA 458
Repatriation Commission v Cooke [1998] FCA 1717
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stoddart (2003) FCA 334
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
29 July 2005 Mr I R Way, Member 1. This is an application by Keith Dawson for review of a decision of the Repatriation Commission dated 7 December 2001, affirmed by the VRB on 31 May 2002, which determined that the applicant does not suffer from war-caused post traumatic stress disorder (PTSD), impotence or lumbar spondylosis within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
§Exhibit A1 Report of Dr Mungomery dated 14 February 2003
§Exhibit A2 Statement of Keith Dawson dated 6 November 2002
§Exhibit A3 Report of Dr Herbert dated 23 January 2003
§Exhibit A4 Australian War Memorial File November 1964 to April 1965
§Exhibit A5 Affidavit of Michelle Beatty
§Exhibit A6 Inpatient Record – 20 June 1965 to 2 August 1965
§Exhibit A7 Confidential Daily Medical Record HMAS Cerberus dated 22 July 1965
§Exhibit A8 Clinical Notes dated 7 February 1978 and 16 February 1978
§Exhibit R1 Report of Dr Hoyle dated 3 January 2003
§Exhibit R2 Discharge Medical Record
§Exhibit R3 Writeway Research Report dated 17 March 2003
§Exhibit R4 Applicant’s smoking questionnaire dated 26 July 1993
§Exhibit R5 Curriculum Vitae of Capt Rothwell
§Exhibit R6 Report of Dr P Mulholland dated 9 November 2004
3. The applicant was represented by Ms S J Armitage and Mr B Williams appeared for the respondent. The applicant, Ms H Tosi and Dr P Mulholland (psychiatrist) gave oral evidence. Mr Q Mungomery (consultant psychiatrist), Dr K Hoyle (urologist) and Captain W Rothwell (RAN Rtd) gave evidence by telephone.
4. This matter first came on for hearing on 4 and 5 September 2003. The hearing was adjourned so that additional medical evidence could be obtained about the applicant’s psychiatric condition. This evidence was subsequently obtained from Dr P Mulholland after considerable delays arising from a number of unfortunate medical incapacities suffered by the applicant and his relocation to Melbourne.
5. Further delays were experienced in bringing this matter to a conclusion, because of the applicant’s continuing ill health and his inability to travel to Brisbane for the hearing. The hearing was eventually resumed in Brisbane on 21 June 2005. The applicant was unable to be present, however, he participated in the whole of the hearing by telephone.
6. The applicant was born on 18 September 1943 and served in the Royal Australian Navy from 4 June 1962 to 27 October 1966. During this time he rendered operational service in the FESR from 9 May 1963 to 18 May 1963 (aboard HMAS Parramatta); and 18 November 1964 to 22 January 1965, 27 January 1965 to 8 February 1965, 11 March 1965 to 21 April 1965 (aboard HMAS Derwent). The applicant’s accepted service related disability is sensorineural hearing loss of the right ear; and his non-service related disabilities are: obsessive compulsive neurosis, peptic ulcer, sarcoid condition, post traumatic stress disorder; chronic airway obstruction, incisional hernia, impotence, lumbar spondylosis.
7. No incapacity has been found for sensorineural hearing loss of the left ear, and he is eligible for treatment of PTSD (not service related).
8. This matter is contested on the grounds that the applicant suffers from war-caused impotence and a war-caused psychiatric condition. The respondent’s rejection of the applicant’s claim for lumbar spondylosis is not at issue and in view of this and on the material before it, the Tribunal affirms that part of the respondent’s decision in respect of lumbar spondylosis.
9. The applicant has put forward an hypothesis that as a result of suffering stressful events during his operation service he now suffers from PTSD or anxiety disorder and/or depression. And that as a result of trauma to his penis and/or his psychiatric condition suffers from war-caused impotence.
Legislative Framework
10. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(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;…”
11. The relevant provisions of the Act relating to the appropriate standard of proof are 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.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
12. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“196B Functions of Authority
…
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
13. The RMA has, pursuant to section 196B(2) of the Act, determined SoPs in respect of PTSD, anxiety disorder, depressive disorder and impotence. It is common ground between the parties and the Tribunal accepts that the relevant SoPs in this matter:
§ PTSD – Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999)
§ Anxiety Disorder – Instrument No 1 of 2000
§ Depressive Disorder – Instrument No 58 of 1998
§ Impotence – Instrument No 97 of 1996
14. Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) (PTSD) relevantly states:
“5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or …”
and defines “experiencing a severe stressor” as follows:
“‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;”
15. Instrument No 1 of 2000 (Anxiety Disorder) relevantly provides:
“Factors
5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
(iv)having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder;”
Other definitions
8. For the purposes of this Statement of Principles:
‘major illness or injury’ means a disease or injury that is life threatening or seriously disabling.
‘severe psychosocial stressor’ means 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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
16. Instrument No 58 of 1988 (Depressive Disorder) contains the identical factors (and their definition) as set out in the above paragraph.
17. Instrument No 97 of 1996 (Impotence) relevantly provides:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting impotence or death from impotence with the circumstances of a person’s relevant service are:
(a)suffering from a specified psychiatric condition at the time of the clinical onset of impotence; or
(b)smoking at least five pack-years of cigarettes or the equivalent in other tobacco products within a twenty year period, before the clinical onset of impotence, and where smoking has ceased, the clinical onset has occurred within ten years of cessation; or
…
(f)suffering from blunt or penetrating trauma to the external genitals, perineum or pelvis, including surgical trauma, within the 90 days immediately before the clinical onset of impotence; or
…
7. For the purposes of this Statement of Principle:
‘suffering from blunt or penetrating trauma’ means suffering an injury to the external genitals, perineum or pelvis caused by the force of an extraneous mechanical or physical agent;…”
Applicant’s Evidence
18. In respect of his claimed psychiatric condition, the applicant claims to have suffered from four stressful events during his operational service, these events providing a causal connection between his claimed disease and his eligible war service.
19. These four events can be generally described as:
(a)the gun magazine event
(b)the prisoners’ event;
(c)the grenade priming event; and
(d)the panic attack event.
20. In his written statement (Exhibit A2) the applicant described these events and his reaction to these events as follows:
“(a) The gun magazine event
12.I was trained as a gunner for the left hand loading of a gun turret. It was my job to take the shell charger from the hoist to the loading tray at the left hand gun of a turret. I was on deck to do these duties, and I never prior to the 23rd December did any other duties with respect to the turret.
13.On 23 December 1964 I was ordered from the turret to the magazine on my own. This was because a practice bombardment was being called out south of Wallace Bay near the boarder with Indonesia. When I went into the small confined cubicle, approximately 20 feet x 10 feet with all of the shells in their various pigeon holes, the hatch was locked over my head. I was also locked below the water line, and suffered an intense fear of injury or death.
14.It was my job to place shells in the hoist. I was receiving orders barked out at me from the deck for various ammunition types. I was in the hatch for about 7 hours, possibly 8, but the fearful experience made it feel like it was an even longer period of time.
15.During the several hours of live fire bombing there was a great deal of shouting and yelling, and explosions. I was receiving orders ‘left gun fire, right gun fire, shell type x shell type y’.
16.Our normal job was to be on the deck as the loader, not at the magazine room feeder. I wasn’t even trained to be a magazine room feeder, but there I was hearing great noises, smells and experiencing confinement in a closed space for what felt like a great deal of time. This all caused extreme fear, panic and anxiety. I felt extremely trapped and this feeling stays with me to this day as a result of that long confinement.
17.I still feel the following symptoms:
(i) never comfortable in confined spaces;
(ii) not being able to sit with my back to doors or windows;
(iii) air travel is very stressful and I sweat profusely;
(iv) I suffer from hyper vigilance; and
(v) I have recurrent nightmares
(b) The prisoners’ event
3.We were on patrol in the Singapore straits. The Derwent was the sister support ship to the HMAS Teal, and we were sailing adjacent to each other 4½ kilometers apart when HMAS Teal intercepted two Indonesian Sampans. The Sampans opened fire on the Teal which returned fire killing three Indonesians.
4.The Teal picked up prisoners from the Sampans.
5.The HMAS Derwent came alongside to take on board the prisoners from the HMAS Teal. I was on deck when the prisoners came abroad. To the best of my knowledge there were approximately 7 prisoners that came along the gangway. They were not bound, but they were guarded.
6.The prisoners were left on the quarter deck and were lined up in two rows with their hands bound either in front of them or behind them.
7.My time came to watch these prisoners and it was now night time. My watch ran for the period of approximately 4 hours where I was the only guard on duty. The Indonesian Special Forces prisoners were not armed and made no attempt at insurrection. There were no other sailors around me in the vicinity that I could see to help me guard the Indonesian prisoners. I believe the weapon that I had with me, a Self Loading rifle (SLR) and Bayonet.
8.Despite the fact that the prisoners were bound, I felt great fear. The knowledge of the three Indonesians that were killed on the Sampan by HMAS Teal at the first point of contact increased my realisation to the reality of being in hostile territory. Being in a hostile unfriendly war zone, and faced with guarding these prisoners, I began to experience extreme anxiety and panic. Intense fear in the face of these prisoners during the course of guarding them and afterwards was extreme. I felt very vulnerable and fearful.
9.Despite the fact that they were not armed, I felt the very real threat and fear of serious injury or death from the Indonesian Special Forces personnel.
10.We were constantly on patrol from 6 December 1964 – 5 February 1965. We were constantly aware that we could come under fire at any time during this period, which created an ongoing daily stress.
11.I do not recall guarding the Indonesian prisoners a second time. Derwent took the prisoners back to Malaysia. It was either at Malaysia or Tawau in Borneo where the prisoners were dropped off. We immediately returned to the Singapore Straits.
(c) Grenade Priming Event
20.Over the course of the early January 1965 period I was ordered to prime grenades on approximately 10-20 occasions. Anti-diver grenades and anti-small craft grenades were needed. The hand grenades were 36 mills (Navy issue) and were to be used against Indonesian forces, while at Tawau, Borneo if the need arose.
21.Constant periods of being super alert, tiredness, moments of panic, fear of making a fatal mistake while carrying out the operations on active day were always with me.
22.I seem to recall I was the only person in charge of priming the grenades at that particular time.
(d) The Panic Attack
18.On Christmas Day 25 December 1964 (2 days later) I was on lookout duties while at station. Most of the crew were at Christmas lunch. I sighted what appeared to be a ship coming at speed bow head on. I remember hitting the alarm button causing the ship to prepare for action. The ‘hostile’ turned out to be a friendly and the incident confirms the degree of stress anxiety that I was suffering from the 10 days which accumulated prior to this triggering the panic attack on Christmas Day.
19.The severe stress and threat of injury and death during all the action stations practice or real was constant.”
21. In his oral evidence the applicant varied some aspects of what he had said in his written statement about each incident.
22. In respect of the magazine event he said he could not recall the exact date of the practice bombardment or its duration or whether the ship was moving at the time. He said he did not understand what was going on and had no control over what was happening and reinforced the comment that he was not fully trained as a magazine loader, felt trapped and locked in, fearful of the unknown and that an attack was probably imminent and that he would be unable to get himself out.
23. The Tribunal notes that Captain Rothwell, following his research of the relevant ship’s records, states that HMAS Derwent, while at anchor off Coalmine Ridge in the same area as described by the applicant, undertook a practice bombardment on 23 December 1964, the firing lasting 45 minutes and that there was no threat of any enemy fire at HMAS Derwent or any actual return fire. Captain Rothwell also commented following discussions with the OIC gunnery school HMAS Cerberus, that the applicant, as a qualified able seaman quartermaster gunner, would have received basic training in lower quarters ops, regarding selection, handling and passing-up of ammunition. The OIC gunnery school is also reported as saying:
“When asked about duty in the magazine, LCDR Fisher said that it was not a difficult task and that, while the magazine is certainly below the waterline, it is no more claustrophobic than the gun turret itself, which is worse and is much noisier. In addition, while the hatch is normally ‘dogged’ down during firings, it is not actually locked, and so it would have been easy enough for Mr Dawson to let himself out of the magazine should that have become necessary. Mr Dawson contends that the magazine was a ‘confined cubicle’ of 10 X 20 feet. It should be noted that, in a ship such as DERWENT, such a room is of a relatively normal size.”
24. When questioned about gunnery training the applicant said that he had regularly participated in practice firings in his role in the gun turret as left gun loader, which he agreed was very noisy. He said this was no worse than being in the magazine. However he felt safer in the turret because of its armament and because he felt he could escape, where this was not so when under water in the magazine. The Tribunal notes Captain Rothwell’s opinion that the magazine was quieter than the turret during firing and much less confined with much less smoke.
25. In respect of the prisoners’ event, the applicant said he had been confused when he made his written statement and got it wrong. He said he was not sure when the event took place. However, he could vividly remember having to guard two lines of what he thought were Indonesian prisoners (more than three and less than ten) on HMAS Derwent’s quarterdeck. He said he was not armed with a rifle (as he said in his written statement) but thought he had either a baton or a bayonet. He said that as part of his duties on HMAS Derwent he did not have or carry a personal weapon. He said he thought the prisoners were sitting on the deck with their hands bound behind their backs and facing him. He said that at no time did any of the prisoners threaten him but he was fearful as he did not know how to cope or handle a situation which could have got completely out of control.
26. As a result of his research Captain Rothwell was firmly of the view that any event, such as the applicant described about a transfer of prisoners from HMAS Teal to HMAS Derwent did not occur. However, he said that it was just possible (but unlikely) that some Indonesians may have been detained on the Derwent for a short period during interrogation and as a result of intercepts of Indonesian small craft.
27. With regard to grenades the applicant told the Tribunal that the incident occurred at night for about 20 minutes to 1 hour and at the time he was the only one priming the grenades. He said that there was urgency in the task and he was fearful of the unknown and suffering death or injury if he did something wrong. He said he always felt nervous after this night. The Tribunal notes that the applicant had carried out this role on a number of occasions and that it was one of his normal duties and a regular and routine task. The Tribunal accepts that care is needed in handling grenades and indeed any explosive device. The Tribunal notes Captain Rothwell’s opinion that priming of scare charges is not a difficult or exacting task.
28. In his oral evidence the applicant said he now knew the incident referred to as a panic attack did not take place on Christmas Day 1964 but on 2 February 1965 and it was an Indonesian tug boat. He said he had been very clear that the event took place on Christmas Day until he found out that he was totally wrong. He blamed the heavy medication he was on in Dr Anderson’s care for his confusion. The applicant told the Tribunal that the sighting of the boat was some distance away on the horizon and that the officer of the watch checked out the sighting and no further action was taken. The Tribunal notes that Captain Rothwell records the HMAS Derwent coming across an Indonesian mine sweeper in February but there was no incident causing the sounding of an alarm.
29. In respect of the recollections of the claimed stressful events, the applicant described massive vivid flashbacks about noise, flashing, voices and the smell of cordite. He said he was walking down the street in 1995 or 1996 and he thinks that he had a flashback reaction that was triggered by smells from a Chinese restaurant. He said he recalled Asian faces, seeing parts of things in nightmares, seeing the bow wave of an approaching ship. In addition to what he said in his written statement about symptoms, he said he hid in corners and under the bed, avoided glare, had barred his windows and often cried.
30. The Tribunal notes that Dr Anderson, consultant psychiatrist, saw the applicant on several occasions in 1997 including while the applicant was in Buderim Private Hospital with post traumatic stress symptoms. Dr Anderson’s clinical notes record the applicant telling him that he saw small children tied up in Malaya, saw dead babies in the Harbour at Sarawak and that he had been under fire from Indonesian gun batteries, ships being mined and intense horror for killing innocent women and children from own troops return fire. When asked in cross-examination about these recollections, the applicant said they were all wrong and he was surprised he had mentioned them. He said he was on heavy medication and confused at the time. He said that reading the Writeway Research Report and psychiatric help had assisted him in putting his war time experiences in the correct perspective.
31. In answer to questions about the four stressful events, the Tribunal notes that the applicant was able to freely discuss these events and describe his feelings at the time and subsequently, without any visible signs at all of distress and to recall that he was able to perform satisfactorily the duties required of him. The applicant spoke of not letting his mates down and wanting to be the best at doing the duties he was trained to do and carrying out these duties in an “adrenalin rush”. He said that prior to deployment to FESR he had been briefed about the nature of confrontation with Indonesia, incursions which might occur in the Malaya/Borneo area and the activities that would be undertaken to stop infiltration. The Tribunal notes Captain Rothwell’s assessment that operations in FESR were “low threat” and that no Indonesian war-ship ever fired on an FESR ship. Captain Rothwell said he would not describe the situation as warlike but rather a policing situation high of the scale of alertness but not unsafe.
32. In respect of the applicant’s Navy service the Tribunal notes that the applicant undertook initial training and gunnery training at HMAS Cerberus, was an Ordinary Seaman Trainee Gunner in HMAS Parramatta and rose to Able Seaman Quartermaster Gunner whilst on HMAS Derwent (left gun).
33. The applicant told the Tribunal that at the time of his discharge he had part qualified for leading seaman and that he loved the Navy. He described the family problems that led to him being torn between family (principally his mother) and the Navy and the fact that in his view, if there had been no problems at home he would have gone back to sea and he could have successfully risen to the rank of Petty Officer if he had stayed in the Navy. He said that in effect his discharge from the Navy was on compassionate grounds. He described his feelings at the time of discharge as those of anger, despair, loss of family and loss of self esteem, drinking to oblivion and a lack of support from the Navy.
34. On leaving the Navy the applicant lived at home with his mother and shortly thereafter sought medical treatment for psychiatric symptoms. The applicant told the Tribunal that he had gone to work with Kodak shortly after leaving the Navy and soon found he became violent when faced with slackness in his co-workers and he was dysfunctional at work and showed a total lack of discipline. He said this was when he sought help or was told to get help. He said that on two occasions in 1967/68/69 he had been admitted to hospital in Victoria for psychiatric treatment and that he had overdosed on the medicine that he was taking (Laroxyl). He said that Laroxyl was first prescribed at the end of 1966 and that he was treated for depression every week or two weeks.
35. It was the applicant’s evidence that at this time he had a fear of failure, felt anxious and threatened and totally alienated to everything around him.
36. In 1970 the applicant married and had two children, one born 18 September 1973 and the other on 29 February 1976. He said he changed his lifestyle in the 70s and felt “comfortable”. He recounted problems of ulcers and tumour removals in the late 70s and it was not until 1995/96 that he next sought medical treatment when he had a major psychiatric event walking down the street in Buderim, resulting in his being admitted to Buderim Private Hospital for psychiatric treatment under Dr Anderson. He said he continued to be treated for his psychiatric condition until the year 2000 when “he left Vets”. He said he subsequently began to see Dr Mungomery, psychiatrist, in May 2001 on referral from his LMO, Dr Somers.
37. In respect for his claim for impotence the applicant told the Tribunal that he had a number of casual sex contacts during his service in the FESR and that he became aware in April/May 1965 during his return to Australia on HMAS Derwent of an itchy cauliflower type growth on the left side of the head of his penis. He subsequently was admitted to Flinders Naval Hospital in July 1965 for treatment. He describes the circumstances of his treatment and subsequent reaction as follows (Exhibit A2):
“25.After I was diagnosed as having warts, the treatment advice to me was to burn off the warts with acid. At first I did protest, but then I consented to the medical procedure.
26.The sick bay attendant spilt acid over the head of my penis, badly burning it. He burnt through the left side of the tip and around and down the head of the penis. The burns were severe and I was suffering from extreme pain.
27.I have a vivid memory of this hospitalisation where I had my hands on the person of the sick bay attendant before I fainted. Such was the extreme pain. I have examined the inpatient records of my hospitalisation for warts during that period. The records are inaccurate and incomplete.
28.The extract of ‘foreskin became inflamed after contact with Podophyllin’ was in fact a massive trauma to my penis as result of severe burning of acid on my penis.
29.That is why I spent a further 12 days in hospital, and all of this while I was treated with morphine and other burns treatments. I was re-bandaged approximately twice a day, and I had a glass tube placed inside my penis where the urethra is, to enable me to make excretions, and also for the healing of my penis which was badly burnt.
30.While receiving care for burns in hospital my sister died and I obtained special leave for her funeral. I arrived home on 2 August 1965 and prepared a bath. Upon contact with the water the whole head of my penis ruptured and burst open like a flower falling apart. Both the foreskin and the head of the penis fell apart, and there is scarring on my penis to this day.
31.An ambulance rushed me back to the HMAS Cereberbus [sic] (Melbourne) and I received emergency surgery on 3 August 1965. The records for my admission on 3 August 1965 state ‘Paraphimosis’. The definition of Paraphimosis does not do justice to what actually happened to my penis.
32.Paraphimosis means an irreducible retraction of the prepuce (prepuce is the foreskin around a penis). While I am not a medical person, it wasn’t just the foreskin of my penis that was damaged, it was the left side of my penis and the foreskin that had just fallen apart. I was in great pain, and I was hospitalised again from the 3rd of August 1965 to 20th August 1965, a period of 17 further days. …
33.The words in the nursing notes which state: ‘uneventful adult circumcision’ are again inaccurate. I had a major trauma to my penis, and while in the process of receiving treatment I did receive circumcision. I also received treatment and surgery for the damage to my penis as a result of the initial burns. The period for the next two years were particularly very stressful as I could not have any sexual relationships after this traumatic and painful experience.
34.By the time I did resume physical contact I found the pain and trauma had caused complete loss of confidence, resulting in impotence and contributing to my post traumatic stress disorder.
35.From then on I have suffered from impotence with only minor sexual success over the years, but it is still an ongoing condition.”
38. In his oral evidence the applicant said his erectile function had never been the same since his treatment for VD and circumcision. The applicant agreed he had not brought attention to his impotence on discharge but said it was a major event in his life that had caused problems post the operation, including difficulties with his marriage of 25 years and in subsequent relationships. The Tribunal notes that the applicant was divorced from his wife in 1995 and that he had a subsequent relationship with a new partner, Helen Tosi, from 1997 to December 2002.
39. Helen Tosi gave oral evidence. She told the Tribunal she was born on 29 September 1953 and had a relationship with the applicant for about 5 years from late 1997 to early 2003. She said that even though their relationship was sexual, such activities were characterised by incomplete function, the applicant not being able to achieve full erection and any such erections being only for short periods. She said it had taken some time for her and the applicant to find “our own way of being together” and that in any event, sexual activity was a small part of their relationship, the major problem in the relationship stemming from the applicant’s PTSD. She said the applicant had come to rely on her as a carer, he suffered mood swings and hypervigilance and on occasions would just disappear. She said she also suffered a stress disorder.
40. At the resumed hearing on 21 June 2005, the applicant gave further evidence by telephone.
41. A crucial issue addressed by the applicant was the history of the onset of his psychiatric conditions.
42. As has already been indicated, the applicant at the initial hearing of this matter gave evidence of seeking medical help and being hospitalised for psychiatric treatment shortly after his discharge from the Navy. Dr Mulholland, while aware of this evidence, did not elicit any evidence from the applicant during his consultation with him and, based on what he says he was told by the applicant, Dr Mulholland opined that the clinical onset of the applicant’s psychiatric condition was in 1994.
43. The applicant reinforced his earlier evidence by telling the Tribunal that he was discharged from the Navy on 27 October 1966 and commenced work with Kodak one week later. He said he was depressed at this time, anxious and found difficulty in adjusting to a new lifestyle and work environment where the team support he had experienced in the Navy was missing.
44. He said he was also not sleeping at night, was frustrated and stressed about not being able to cope and as a result of a run-in with another worker, sought help. He said he was put on anti-depressant medication (Laroxyl) by his GP and was being monitored weekly by his GP. However, while he found Laroxyl of some help he started to take more for more relief and as a result of an overdose was hospitalised in May 1967 (at the Preston and Northcote Community Hospital). Shortly after discharge from the hospital, he again overdosed and this time was admitted to the Alfred Hospital in June/July 1967, where he spent two weeks in a psychiatric ward. He told the Tribunal that he was an outpatient for 12 to 18 months attending for weekly psychiatric treatment. He could not recall who treated him, but said he remembered not coping well at all. He said he felt in control from about the end of 1969 until 1972, when he was again put on Laroxyl by his GP until at least 1978.
45. The Tribunal notes that the clinical notes (Exhibit A8) support the applicant’s evidence about overdosing on Laroxyl, being hospitalised and being a tense and anxious person who had difficulties adjusting to civilian life. Dr Mulholland told the Tribunal that he had only received these clinical notes recently and after he had seen the applicant.
46. In respect of his childhood, the applicant reinforced his earlier evidence that he joined the Navy to get away from his stepfather who, he said, had abused him as a child. However, he strongly disagreed with the opinion that his subsequent psychiatric difficulties had anything to do with his earlier childhood, his stepfather no longer being a threat to him by the time he was 16 years old. He told the Tribunal that he left the Navy at his mother’s request on compassionate grounds, four family members having died within a period of 12 months and his mother being left on her own and needing help as the sole remaining family member (apart from himself). He said he had no say in this, that his discharge put paid to his 20 year Navy career plan and that he really loved the Navy, the disciplined lifestyle and the opportunity to serve his country. He also said he had been a member of the Army Reserve from age 16.
Medical Evidence
47. Dr K Hoyle, Urologist, provided a written report dated 3 January 2003 (Exhibit R1) and gave evidence by telephone.
48. In her written report Dr Hoyle stated:
“…Over the next two years the patient said he ‘shyed away from relationships’ because of penile pain and a ‘fear of impotence’ but the patient did not report that he was unable to attain or maintain an erection during these two years.
The patient said that after two years, he resumed sexual activity, at which time he noticed the shaft of his penis was quite hard with erections but that his glans penis was quite soft. However he was able to attain erections good enough for sexual intercourse. He was married for 25 years and I note that he fathered two children during this time.
Currently the patient reports that his erections are of ‘poor quality’ and they often ‘only last a few minutes’ but again he is still able to have vaginal penetration. That is, the patient reports a worsening of his impotence between 1965 and now.
On examination of the patient’s abdomen, he has scars consistent with his previous vagotomy and appendicectomy. I could not palpate any abdominal masses. His testicles are both normal. He has a normal looking circumcised penis and I could not palpate any masses along the shaft of the penis or within the glans. He has a normal looking glans penis that has no scars and it does have normal sensation. He also has a normal looking external urethral meatus, again with no evidence of scarring or stenosis. On digital rectal examination, the patient has a moderately enlarged benign feeling prostate gland. He has normal anal sensation and anal tone.
As to whether this patient is impotent or not ie he has recurrent/persistent failure (to initiate an erection or) to maintain an adequate erection until ejaculation, I can only go by what the patient tells me ie that he does suffer from impotence. There is no test that I can perform that can confirm or deny the patient’s assessment of his own erectile function or dysfunction. However I feel that I can rule out fatigue and alcohol/drugs as the cause of his impotence. However I cannot rule out anxiety as a cause or contributing factor to his impotence. I do not believe that the use of Podophyllin cream in 1965 (despite its causing inflammation of the glans penis) or the patient’s subsequent circumcision caused sufficient trauma to the external genitals to cause impotence. That is, the trauma would have only involved the skin and would not have involved the nerves, vessels or corpora cavernosa which are responsible for erectile function. Nor would the use of Podophyllin cream or a circumcision have affected his testosterone levels, normal levels of which are required for erectile function.
As to the date of onset of the patient’s impotence, again I can only go by what he tells me in that it sounds like his erectile problems started in 1965. However, as I previously noted, from his history his erectile dysfunction seems to have worsened over the years.”
49. In her oral evidence Dr Hoyle opined that the applicant’s impotence had a clinical onset in 1965 although as noted in her report this was based on subjective evidence. She affirmed her written report about the normal appearance of the applicant’s penis with no scars and when taken to Factor 5(f) of the relevant SoP (para 17 above) said this Factor did not exist.
50. In cross-examination she agreed that the periods of hospitalisation which the applicant suffered were unusual and could have been due to complications but she did not know what the circumstances were. She confirmed that Podophyllin could cause ulceration or “chemical burn” but in her opinion it was unlikely that any damage would go beyond the skin. She agreed that some form of suture marks would be normal in circumcision however she did not find the applicant’s penis to be suffering from scars or other marks as he described. Dr Hoyle agreed that it was possible that adult circumcision could cause impotence. However, highest on her list of causes would be anxiety, with smoking possibly causing a worsening of the situation. She said it was possible to father children even if impotent, within the meaning of that term. In cross-examination she said that had there been complications in the hospital treatment of one of her patients she certainly would have recorded these complications.
51. Dr Mungomery, consultant psychiatrist, provided a written report and gave evidence by telephone. His evidence is of little assistance. As the applicant’s treating psychiatrist he accepted what he was told by the applicant and what Dr Anderson had recorded about the history of the applicant’s claimed stressors. Dr Mungomery said he had not explored the family problems suffered by the applicant at the time of his discharge.When confronted with the applicant’s changed story about stressors and the applicant’s reliance now on Writeway findings, Dr Mungomery said he was not sure whether the diagnosis of the applicant’s psychiatric condition should be PTSD or Anxiety Disorder and furthermore he was not sure to what extent the applicant’s operational service had contributed to his psychiatric disorder. He said he would need to tease out these matters with the applicant to determine the matter. In view of this and after discussion with both parties the matter was adjourned for further medical evidence.
52. Dr Mulholland, psychiatrist, saw the applicant on 19 October 2004 and provided a written report dated 9 November 2004 (Exhibit R6). Dr Mulholland also gave oral evidence.
53. In his written report, Dr Mulholland opined:
“DISCUSSION
20.1The total clinical picture is consistent with this man having a high level of emotionally vulnerable personality features as a consequence of the adverse circumstances of his childhood which of themselves could have resulted in the later development of the psychiatric illness. At the very least he had a high level of vulnerability-susceptibility to the development of psychiatric disorders and his then being exposed to situations which would have been anxiety-provoking has resulted in psychological decompensation. In other words his being exposed to these situations has triggered off psychiatric illness in a vulnerable person.
20.2Alternatively there is a process of misattribution occurring in that his anxiety-type symptoms have become focused on issues that are not the true source of his psychiatric disorder – the true basis of his psychiatric disorder probably being that of his childhood experiences.
20.3This man is psychiatrically ill at the present time and needs to be in psychiatric treatment. He needs to be having regular consultations with a psychiatrist +/- a psychologist for ongoing counselling-supportive psychotherapy. He would also benefit from judicious use of maintenance psychiatric medication.
20.4Because of his psychiatric condition alone he is not fit for work at the present time and for him to get back into the workforce his psychiatric condition would have to improve considerably. Such improvement even with advised treatment is unlikely.
20.5I note that Dr Bob Anderson referred to post-traumatic stress disorder and also referred to a problem of anxiety and depression.
20.6I note that Dr Quentin Mungomery made a diagnosis of post-traumatic stress disorder.
20.7The problem with the diagnosis of post-traumatic stress disorder is to do with whether this former mariner meets the requirements of criterion A as per the DSM-IV. It is also noted that at other times this veteran has reported experiencing phenomena which apparently did not occur. In the circumstances I think the diagnosis of PTSD is at best arguable because of the criterion A problems. Note that the criterion A issue is partly a matter for a psychiatrist to resolve and partly a matter for other decision makers. It is accepted that the events that he described would have created stress and anxiety however it is not considered that those events would have satisfied criterion A. If however the appropriate decision makers were to accept that those conditions did satisfy criterion A then a diagnosis of post-traumatic stress disorder would follow.
20.8That notwithstanding his general presentation and history is consistent with a PTSD diagnosis and I can readily understand why Dr Anderson and Dr Mungomery who were associated with his treatment should arrive at such a conclusion.
20.9However looking at the total clinical picture at this time, whilst there is no doubt whatsoever that this former mariner is psychiatrically ill, it is doubted that the correct diagnosis is post-traumatic stress disorder because of the problem with criterion A. Perhaps a more appropriate diagnosis is that of chronic anxiety and depression which as per DSM-IV would be translated to chronic generalised anxiety disorder and chronic dysthymic disorder. This is occurring in a setting of an individual who probably did not have a recognised personality disorder but who probably did have emotionally vulnerable personality features by virtue of serious adverse developmental factors.
20.10This man is unable to work because of psychiatric factors alone and although it could be anticipated that there will be some improvement with necessary and advised treatment it is unlikely given the total clinical situation and his age that he will ever be able to work again and in particular will not be able to work the requisite aggregate of 8 hours per week.
20.11I date the onset of his psychiatric illness back to 1994.”
54. As has already been indicated, Dr Mulholland did not take a history of the applicant suffering any psychiatric problems prior to 1994, because the applicant had not told him of any earlier problems. Dr Mulholland said he was aware that the applicant, in his evidence at the initial hearing of this matter, had referred to earlier problems and he was not sure he had pressed the applicant about this or not but thought that he would have given the applicant every opportunity to tell him about his complete history. Dr Mulholland also said that the applicant had not related the work problems he suffered at Kodak on joining that company. The Tribunal notes that the applicant recently, and prior to seeing Dr Mulholland, had had a mild stroke and apparently had difficulties in recalling events.
55. When asked whether, in his opinion, the four stressful events relied on by the applicant would meet criteria A(i) for PTSD, Dr Mulholland said he did not think any of them did nor did he think any of them would reasonably be considered to be severe psychosocial stressors. Dr Mulholland did agree that in considering a person’s response to any particular incident, subjective considerations were important and that individual responses to incidents could vary and that the applicant’s ability to deal with stressors would be less than for others.
56. Dr Mulholland also expressed the view that he would need to be convinced that the incidents actually happened as described by the applicant and referred to his report where the applicant told him he did not know what was fact or fiction any more.
57. When the applicant’s earlier history of hospital admissions for psychiatric conditions was put to Dr Mulholland, he agreed that such admissions were important markers of onset of a psychiatric condition and, based on the applicant’s early hospital admissions, he said he would now set the clinical onset of the applicant’s psychiatric condition as 1967.
58. When it was put to Dr Mulholland that the applicant vehemently denied that his early childhood affected his personality, Dr Mulholland said that such a reaction was normal and did not change his opinion that the applicant’s early childhood was a significant factor in his psychiatric presentation and vulnerability to stressful events.
59. In cross-examination, Dr Mulholland said it was a very difficult task to assess whether stressors were severe and that he tried to develop an objective idea of how stressful a situation might be and that in this case, taking into account the applicant’s circumstances, he agreed that the applicant’s subjective reaction could have been on a par with an average person’s reaction to a severe psychosocial stressor.
60. In respect of the injury to the applicant’s penis, Dr Mulholland agreed that this would be stressful. However, he said he would struggle with describing the injury as “major”.
61. In respect of a diagnosis of PTSD, Dr Mulholland said that apart from his difficulty with the applicant meeting diagnostic criterion A, the applicant would meet all of the other criteria.
62. In respect of generalised anxiety disorder, Dr Mulholland said that apart from whether the applicant had met the SoP requirements of severe psychosocial stressors, the applicant had quite distinct features of generalised anxiety disorder.
Submissions
63. The respondent submitted that the evidence of Dr Mungomery and Dr Anderson cannot be relied upon, since they both have not taken a reliable history of the stressors the applicant claims to have suffered.
64. The respondent drew the Tribunal’s attention to the specialist medical report of Dr Mulholland where he opined that the events, as described by the applicant in his evidence to the Tribunal, do not constitute criterion A stressors for the purposes of PTSD and that the applicant more likely suffers from chronic anxiety disorder and/or chronic depressive disorder. It was submitted that if the Tribunal were to prefer such a diagnosis, the stressors as described by the applicant do not meet the definition of a “severe psychosocial stressor”, as set out in the relevant SoP.
65. In considering these stressors, the respondent submitted:
“17.In re Stonehouse v Repatriation Commission the tribunal member at paragraph 19 noted ‘…A severe psychosocial stressor must be a stressor that is both severe and psychosocial in nature, and cause the requisite level of distress to the individual. To satisfy the SoP the individual must have experienced an identifiable(?) which has social factors that affected his or her mind or behaviour, causing the requisite level of distress…’
18.In re Hillier v Repatriation Commission the Deputy President stated at paragraph 67 ‘…I consider that the objective requirements of the definition should be assessed from the point of view of the perception of a member of the armed forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart (supra))’ and
‘…I further consider that in the absence of evidence as to how to assess the objective requirements of the definition, some guidance is afforded by the examples included in the definition of occurrences that would constitute a ‘severe psychosocial stressor’….
In oral evidence, Dr Mulholland confirmed the events would not, in his opinion meet criteria A for the diagnosis of post traumatic stress disorder under DSM-IV. He noted the applicant’s mistreatment by his stepfather during early childhood, that later in life ‘being exposed to situations that were distressing or anxiety provoking on top of his personality’ could explain the current symptoms. That the symptoms in his opinion commenced in 1994 when the applicant had a breakdown, that no earlier history could be gained from interview notes, in particular the applicant’s 20 year work history, promotion to customer relations manager and absence of problems raised by the applicant did not reveal a emotional condition. The history of drug overdose and hospitalisation in 1978 was not raised by the applicant. The respondent notes the applicant, in oral evidence, admitted the overdose resulted from an over medication for headaches as opposed to other reasons.
In response to the applicant’s evidence that the childhood experiences ‘absolutely no bearing or later life’ the Dr noted ‘people often say that, but is likely to be wrong in my opinion’. The Dr agreed that the applicant’s personality could be described as ‘timorous’.
The respondent submits the applicant’s childhood experiences are a significant contributor to his personality. The applicant could be regarded as timorous within the meaning of the Deputy President in Hillier and Repatriation Commission.
The events raised by the applicant are not sufficient to meet the definitions in the statement of principles for Post Traumatic Stress Disorder or Generalised Anxiety Disorder.”
66. In respect of impotence, the respondent submitted:
“19.In relation to impotence the applicant relied either on treatment provided in Australia for genital warts or psychogenic factors consequent to operational service. The applicant relies on Dr Herbert (exhibit A3).
20.Dr Hoyle (exhibit R1) describes a normal circumcision scar and no evidence of any trauma, Dr Notes ‘…He has a normal looking glans penis that has no scars and it has normal sensation. No evidence of scarring or stenosis…’. On cross examination the Dr was asked to comment on the use of chemicals in 2 published scientific papers, the respondent nor the Dr have ever been provided with copies for informed comment. The Dr has not had the opportunity to evaluate the papers but simply respond to conclusions drawn by counsel. The responses provided by Dr to those questions could not be relied upon. The respondent submits the medical opinion of Dr Hoyle cannot confirm the extent of injury cited by the applicant. The service medical records do not confirm the extensive injury alleged by the applicant.
21.The respondent contends the material does not meet the factors in the statement of principles 97 of 1996 or 15 of 2005;
(i)factor (a) suffering from a specified psychiatric condition at the time of the clinical onset of impotence is not met since the onset of any emotional condition is given as 1994 many years after the alleged onset of impotence in 1965.
The applicant relies on a war-caused psychiatric condition, if the tribunal accepts a reasonable hypothesis is not raised concerning the psychiatric condition, this factor is not met.
(ii)Suffering from a blunt or penetrating trauma to the external genitals, pelvis, penis or perineal region within the 90 days immediately before the clinical onset of impotence is not met since the treatment described (podophyllin) does not fall within the definition provided at paragraph 7 caused by the force of an extraneous mechanical or physical agent.
The applicant relies on an injury following treatment for warts to meet the factor in the statement of principles, if the alleged injury is not accepted the factor is not met.”
67. Ms Armitage submitted that the applicant suffers from a moderate to severe psychiatric war-caused condition, which requires intensive treatment. In so submitting, Ms Armitage contended that the applicant’s psychiatric condition is PTSD and in the alternative anxiety disorder or depressive disorder.
68. In respect of PTSD it was submitted that the applicant experienced a severe stressor prior to the clinical onset of PTSD, namely, either one or all of the events described as “the gun magazine event”, the “prisoner’s event” and the “grenade priming event”. The Tribunal notes that the “panic attack event” is not being pursued by the applicant as a potential “severe stressor” or “severe psychosocial stressor”. In respect of anxiety disorder or depressive disorder, it was submitted that the applicant experienced a severe psychosocial stressor within the two years immediately before the onset of his anxiety disorder, the applicant relying on the three events as described above. In addition to these three events, it was submitted that the applicant’s treatment of genital warts constituted a major injury.
69. Ms Armitage contended:
“…that Mr Dawson’s perception of the stressors he identifies must be assessed on the basis of whether a person with the same level of knowledge and in the circumstances of Mr Dawson at the time, would reasonably have led to Mr Dawson perceiving a threat of death or serious injury. Although it may be argued that Mr Dawson was a person who may have been more anxious and distressed than other sailors of comparable age and experience, evidence exists of a threat of serious injury as a result of an occurrence which caused Mr Dawson substantial distress (within the meaning of the relevant authorities and principles to be applied) irrespective of Mr Dawson’s personal susceptibilities. Further, and in any event, allowance should be made for Mr Dawson’s particular susceptibilities and the Tribunal is permitted to acknowledge that some circumstances might be extremely stressful to one person but would not be stressful to another. This is not a case where Mr Dawson could be said to have been ‘timorous’.
70. In respect of the applicant’s difficulty in accurately recalling events, it was submitted :
“Although there may be some elements of conflict in the recollection of Mr Dawson as to the date and occasion when these events took place and the official naval records as contained in Australian War Memorial File, it is submitted that the Tribunal is required pursuant to section 119 of the VEA to take into account the difficulties associated with precise recollections of events that occurred some 40 years ago and the possibility of an absence of, or deficiency in, the official records.”
71. In relation to the applicant’s claim for war-caused impotence, the hypothesis put forward is that the applicant contracted a genital wart virus during the period of his operational service and that the subsequent treatment resulted in the impotence injury. Alternatively, it was submitted that the applicant’s impotency was suffered as a result of war-caused anxiety, depression and/or PTSD. The Tribunal notes the applicant’s written submissions included the possibility of the applicant’s smoking habit causing him to be impotent, but this was not an issue raised during the hearing.
72. In respect of its consideration of the applicant’s claim for a war-caused psychiatric condition, the applicant referred the Tribunal to a number of relevant authorities, namely. Repatriation Commission v Deledio (1998) 49 ALD 193, East v Repatriation Commission (1987) 16 FCR 517, Bull v Repatriation Commission (2001) 66 ALD 271, Byrnes v Repatriation Commission (1993) 177 CLR 564, Repatriation Commission v Stoddart (2003) FCA 334, White v Repatriation Commission [2004] FCA 633, Hillier v Repatriation Commission [2004] AATA 897, Morgan v Repatriation Commission [2005] AATA 458, Devereaux v Repatriation Commission [2001] AATA 557.
Consideration
73. The initial task for the Tribunal is to establish a diagnosis of the applicant’s psychiatric condition, if any. This is to be done to the Tribunal’s reasonable satisfaction (s120(4): see also Repatriation Commission v Cooke [1998] FCA 1717).
74. The Tribunal is satisfied that the evidence of Dr Mungomery and Dr Anderson cannot be relied upon. The applicant’s medical history, taken by both of these Doctors has serious deficiencies and does not accurately reflect stressful events the applicant claims to have suffered. And indeed, having heard the applicant’s evidence, as presented to the Tribunal, Dr Mungomery, in effect, said he no longer stood by his opinion.
75. After consideration of all of the material before it and the submissions of both parties, the Tribunal prefers the opinion of Dr Mulholland in respect of the applicant’s psychiatric condition.
76. Dr Mulholland has left open a diagnosis of PTSD, if the Tribunal were to be satisfied that one or more of the stressors described by the applicant meet the diagnostic criterion A, as set out in DSM-IV. This criterion is:
“A. The person has been exposed to a traumatic event in which both of the following were present:
1.The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity to self or others
2. The person’s response involved intense fear, helplessness or horror.”
77. The Tribunal notes that paragraph 2(b)A of Instrument No 3 of 1999 is identical to the above.
78. The Tribunal has considered each of the events described by the applicant and is satisfied that none of the three events relied upon by the applicant, namely the gun magazine event, the prisoner’s event and the grenade priming event meet criterion A(1). In so finding the Tribunal has taken into account the submissions of both parties and the authorities referred to by the applicant (as set out above).
79. The Tribunal therefore finds that the applicant does not suffer from PTSD. The Tribunal accepts Dr Mulholland’s opinion that the applicant is psychiatrically ill and that the appropriate diagnosis of this illness is chronic generalised anxiety disorder and chronic dysthymic disorder. The Tribunal finds that the applicant suffers from anxiety disorder.
80. The question that then arises is when was the clinical onset of the applicant’s anxiety disorder.
81. In his written report, Dr Mulholland dated the applicant’s psychiatric illness back to 1994. However, in oral evidence, having been made aware of the applicant’s evidence about hospitalisation for anxiety in 1967, given initially at the hearing of this matter in September 2003, and subsequently reinforced at the hearing in June 2005. Dr Mulholland agreed that the clinical onset of the applicant’s anxiety disorder was more likely to have been in 1967. The Tribunal accepts Dr Mulholland’s opinion and finds the onset of the applicant’s anxiety disorder was in 1967.
82. Having determined a diagnosis of the applicant’s psychiatric condition, the task before the Tribunal is to evaluate the applicant’s claim according to the process outlined in Repatriation Commission v Deledio (supra).
83. The first step is to determine whether there is an hypothesis connecting the applicant’s anxiety disorder with the circumstances of his relevant service. The Tribunal is satisfied that there is an hypothesis connecting the events the applicant describes with the circumstances of his service. Being so satisfied, the Tribunal is not making findings of fact nor is it assessing whether the hypothesis is reasonable.
84. The second step is to identify the relevant statements of principle. Given the diagnosis that the Tribunal has accepted, the relevant SoP is Instrument No 1 of 2000 (Anxiety Disorder).
85. The relevant factors and definitions are set out in paragraph 15 above.
86. The third step requires the Tribunal to assess whether the applicant’s story fits the template of the SoP. The Tribunal, in so doing, is not required to decide whether it accepts the applicant’s story. The Tribunal’s task is to evaluate his story against the standard of the relevant SoP. Facts are not an issue at this point.
87. Factor 5(a) requires the applicant to have experienced a severe psychosocial stressor, as that term is defined in the SoP.
88. The approach to be taken in considering this matter is described in White v Repatriation Commission (supra) where His Honour Justice Spender said:
“The reference to ‘experiencing’ a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase ‘experiencing a severe stressor’ in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence ‘that evokes feelings of substantial distress in an individual’ also has a subjective element: see Woodward v Repatriation Commission (2003) ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase ‘experiencing a severe stressor’.
In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence of 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.”
89. Also of relevance is what DP Jarvis said in Hillier v Repatriation Commission (supra):
“(a)There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it ‘evokes feelings of substantial distress in an individual’ and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of an with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.’
(c)The occurrence must be such as to cause ‘substantial’ distress, and this together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
90. Turning then to each of the events relied upon.
§ The Gun Magazine Event
91. The Tribunal is mindful that the applicant, at the time this incident occurred, was a qualified and experienced Able Seaman Quarter Master Gunner and that the incident related to a practice bombardment with the ship at anchor and there was no threat of engagement with the enemy. Given the circumstances as described by the applicant and taking into account all of the material before it and the submissions of both parties, the Tribunal is of the view that the event, judged objectively from the point of view of a reasonable person, in the position of and with the knowledge of the applicant, would not be such as to evoke feelings of substantial distress in that person. While the event would be stressful, the Tribunal is of the view that it does not fit the definition of experiencing a severe psychosocial stressor.
§ The Prisoners’ Event
92. The Tribunal notes that the applicant has agreed that he had been confused when he made his written statement, had got it wrong and was not sure when the event took place. His recollection at the hearing was that he was guarding four to nine bound Indonesians on the ship’s quarterdeck for a period of some hours, that he was not armed with a rifle but may have had a baton or bayonet, and at no time did the prisoners threaten him. His major concern was that he did not know how to cope with a situation which could have got completely out of control. These circumstances judged from the point of view of a reasonable person, with the experience and knowledge of the applicant (and with the entire ship’s crew at hand) are not, in the Tribunal’s view, capable of evoking feelings of substantial distress in such a person. The Tribunal is of the view that the prisoner’s event does not fit the definition of experiencing a severe psychosocial stressor.
§ The Grenade Priming Event
93. The Tribunal is mindful that the applicant carried out the task of priming grenades on a number of occasions and that this was one of his normal duties and a regular and routine task. The Tribunal is mindful that the applicant was fearful of making a fatal mistake while priming grenades, but this must be seen in the light of Capt Rothwell’s opinion that priming scare charges is not a difficult or exacting task. Clearly care is necessary in handling grenades. However, the Tribunal is of the view that the respondent is correct in submitting that the task could not fall within the notion of a severe psychosocial stressor.
94. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is of the view that none of the events relied upon by the applicant fit the definition of experiencing a severe psychosocial stressor and therefore the hypothesis put forward connecting the applicant’s psychiatric condition with service (in relation to these events) is not reasonable.
95. For the sake of completeness, the Tribunal must also consider whether the applicant’s anxiety disorder could have been caused by a major illness or injury within the two years immediately before the clinical onset of anxiety disorder. In this case, the applicant’s injury from treatment for venereal warts must be considered and this is dealt with later.
96. Turning then to the applicant’s claim for war-caused impotence. Dr Hoyle, Urologist, has diagnosed the applicant as suffering from impotence with a clinical onset in 1965 and the Tribunal accepts this opinion. Dr Herbert, General Practitioner, expressed the view that the medication applied to the applicant’s penis (Podophyllum) caused significant skin damage which led to circumcision and the subsequent scarring caused sexual dysfunction. There is no evidence to show that Dr Herbert examined the applicant’s penis and his evidence is contrary to that of Dr Hoyle who, on examination, found no scarring of the applicant’s penis. Dr Herbert has also opined (Exhibit A3):
“As for the erectile dysfunction, that is something which can be partly organic and partly psychogenic and the psychogenic component would be the part that was possibly related to Military Service, rather than the organic component. As to the sexual dysfunction caused by the injury thought to have occurred during Military Service – this would have been psychogenic also.”
97. Neither Dr Herbert nor Dr Hoyle described the applicant’s injury as life threatening or seriously disabling and Dr Mulholland opined that while the treatment that the applicant received would have been stressful he would struggle with saying the applicant suffered a “major illness or injury”.
98. The hypothesis advanced by the applicant is that the applicant contracted a genital wart virus while on operational service and that the subsequent treatment resulted in the impotency injury.
99. Alternative hypotheses put forward are that the applicant suffered from impotency because of a war-caused psychiatric condition, or that his impotency is caused by a war-caused smoking habit.
100. In accordance with step 1 and step 2 of Deledio, the Tribunal accepts that there are hypotheses, as set out above, connecting the applicant’s impotence with his relevant service and that Instrument No 97 of 1996 is the relevant SoP.
101. The factors in this SoP which are relevant are factors 5(a), 5(b) and 5(f) and these are set out in paragraph 17 above.
102. Deledio step 3 requires the Tribunal to form the opinion whether any of the hypotheses raised are reasonable and in doing so the Tribunal must determine whether any of the hypotheses fit the template in the relevant SoP.
103. Turning then to the factors relied upon by the applicant.
104. Clearly 5(a) does not exist and hence the hypothesis that the applicant’s impotence is connected with his relevant service because he suffered a severe service related psychiatric condition at the time of clinical onset of impotence, is not a reasonable hypothesis.
105. In respect of factor 5(b), the evidence that is available to the Tribunal shows that the applicant does have a smoking history that points to there being a reasonable hypothesis.
106. In respect of factor 5(f), the question is whether the evidence about the applicant’s treatment for venereal warts fits the definition of “suffering from blunt or punctuating penetrating trauma”, namely suffering an injury to the external genitals, perineum or pelvis caused by the force of an extraneous mechanical or physical agent. The respondent has submitted that the treatment described does not fall within the definition of “suffering from blunt or penetrating trauma” in that there was not “force of an extraneous mechanical or physical agent”. The applicant contends on the other hand, that the applicant did suffer from the force of a physical agent or a surgical trauma. The Tribunal is of the view that the hypothesis raised does fit the template of the relevant SoP.
107. In accordance with step 4, the Tribunal must consider under section 120(1) whether it is satisfied beyond reasonable doubt 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 that the Tribunal is 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.
108. The issue before the Tribunal is whether the Tribunal is satisfied beyond reasonable doubt the applicant’s impotence did not arise from his service. If the Tribunal is satisfied beyond reasonable doubt that one of the central facts is disproved or an inconsistent fact is proved, then the Tribunal cannot find the applicant’s impotence is connected to his service.
109. Considering in the first instance the applicant’s smoking habit. As indicated above, this issue was not highlighted by either party during the hearing of this matter. However, the circumstances of his smoking habit are addressed in the material before the Tribunal (and by Ms Armitage in her written submissions) and clearly the VRB has found that the applicant had an established smoking habit before service. The Tribunal is satisfied beyond reasonable doubt, on the material before it, that the applicant’s smoking habit was well established prior to his operational service, is not war-caused and hence the applicant’s impotence did not arise from a war-caused smoking habit.
110. In respect of the applicant’s treatment for venereal warts, Dr Herbert has not expressed an opinion as to whether the applicant “suffered from a blunt or penetrating trauma”. Dr Hoyle has opined that factor 5(f) does not exist and the Tribunal is satisfied beyond reasonable doubt that there is specialist medical evidence which disproves that the applicant did, in fact, suffer from a blunt or penetrating trauma.
111. The Tribunal is therefore satisfied, beyond reasonable doubt, that the applicant’s impotence is not war-caused.
112. There remains then to consider whether factor 5(a)(iv) of Instrument No 1 of 2000 (Anxiety Disorder) exists. The Tribunal is satisfied, beyond reasonable doubt, that it does not and therefore the hypothesis connecting the applicant’s anxiety disorder with his relevant service because of a major illness or injury is not a reasonable hypothesis.
113. The Tribunal is therefore satisfied, beyond reasonable doubt, that the applicant’s anxiety disorder is not war-caused.
114. The Tribunal affirms the decision under review.
I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 4, 5 September 2003
21 June 2005
Date of Decision 29 July 2005
Counsel for the Applicant Ms SJ Armitage
Solicitor for the Applicant McAlister and Cartmill
For the Respondent Mr B Williams, Departmental Advocate
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