Delahunty and Repatriation Commission

[2003] AATA 914

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 914

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1171

VETERANS' APPEALS DIVISION		)
Re		GRAHAM DELAHUNTY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R  Horton AO, Member

Date16 September 2003 

PlaceSydney

Decision The decision under review is affirmed.

[sgd]   Rear Admiral A R Horton AO,
  Member           

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – whether applicant has post traumatic stress disorder – psychiatric condition – RAN service – operational service in Korea – whether causal connection of psychiatric condition with service – coal mine accident – resultant psychiatric condition – whether SoP factor(s) met – reasonable hypothesis

LEGISLATION

Veterans’ Entitlements Act 1986 sections 9, 13(1), 120, 120A

Statement of Principles Instrument Number 58 of 1998, concerning Depressive Disorder

Statement of Principles Number 3 of 1999 as amended by Instrument Number 54 of 1999, concerning Post Traumatic Stress Disorder

Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition (DSM IV) 

AUTHORITIES

Benjamin v Repatriation Commission (2001) 70 ALD 622

Bull v Repatriation Commission (2001) 34 AAR 326

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 83 FCR 82

Connors v Repatriation Commission (2000) 59 ALD 61

Stoddart v Repatriation Commission [2003] FCA 334

Lees v Repatriation Commission [2002] FCAFC 398

Woodward v Repatriation Commission [2003] FCAFC 160

Repatriation Commission v Cornelius [2002] FCA 750

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Re Slattery and Repatriation Commission (1998) 52 ALD 90

REASONS FOR DECISION

16 September 2003 Rear Admiral A R Horton AO, Member  

1.      This is an application to the Administrative Appeals Tribunal (”the Tribunal”) by Graham Wallace Delahunty (“the Applicant”).  The Applicant seeks review of a decision of the Veterans’ Review Board (“the VRB”) dated 30 July 2002 which affirmed a decision of the Repatriation Commission (“the Respondent”) dated 28 July 2001 refusing a claim for Post Traumatic Stress Disorder (“PTSD”). 

2.      At the hearing before the Tribunal on 26 June 2003, the Applicant was represented by Mr M Vincent of Counsel.  Mr J Marsh, Senior Advocate, represented the Respondent.  The Applicant, his wife Mrs C Delahunty, Dr A Dinnen, Consultant Psychiatrist, and Dr R Haik, Consultant Psychiatrist, gave evidence.   The Hearing was adjourned after the hearing of evidence, oral closing submissions being made on 18 July 2003.

3.      The Tribunal had before it as evidence the following documents: 

Exhibit	Description	Date
T1-13 pp1-70	Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
T1	Additional T documents (14 pages)
A1	Report by Dr A Dinnen	15 January 2003
A2	Report by Dr A Dinnen	24 February 2003
A3	Report by Dr A Dinnen	20 June 2003
A4	Report by Dr A Dinnen	25 June 2003
A5	Extract from DSM IV pages 428 - 440
R1	Report by Commodore P M Mulcare for Writeway Research Service	23 January 2003
R2	Report by Dr R Haik	27 February 2003
R3	Clinical Notes from Dr S Marlton, General Practitioner
R4	Clinical Notes from Prince Henry Hospital
R5	Transcript of the VRB hearing	30 July 2002

ISSUES

4.        On 13 February 2001, the Applicant lodged a claim for hearing loss and PTSD.  The claim for bilateral sensorineural hearing loss was accepted on 28 July 2001; the claim for PTSD was not accepted on the basis that the condition was not war caused.  On 30 July 2002, the VRB affirmed this decision in respect of PTSD, concluding that the Applicant did not meet the requirement of experiencing a severe stressor.  

5. The Applicant served in the Royal Australian Navy from 20 September 1951 to 19 September 1957. He had operational service from 3 June 1953 until 12 February 1954, during which time he served on board HMAS Tobruk in Korean waters. The incident which he claims was a severe stressor, and which he claims has led to a condition of PTSD, occurred during this operational service period. Hence, this matter must be considered under the provisions of section 120(1) and (3) of the Veterans’ Entitlements Act1986 (“the Act”), that is, the relevant standard of proof relating to a reasonable hypothesis.   

6. The diagnosis of the relevant condition is to be in accordance with the provisions of section 120(4) of the Act, that is, to the reasonable satisfaction of the Tribunal. The Applicant claims that he has the condition of PTSD; the Respondent claims that the appropriate condition is Obsessive Compulsive Disorder (“OCD”) or in the alternate, Depressive Disorder. As the claim was made after 1 June 1994, the reasonableness of the hypothesis is to be assessed by reference to Repatriation Medical Authority’s Statement of Principles, the description of the relevant psychiatric conditions being derived from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM IV). 

STANDARD OF PROOF

7. Section 9 of the Act provides that:

“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 the disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

…”  

8. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.

9. Sections 120 and 120A of the Act relevantly state:

"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.

Note: This subsection is affected by section 120A.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c)      that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

...

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;

...

(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 196(b)(2) or (11); or

(b) a determination of the Commission under subsection 180(A)(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

(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 196(B)(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."

BACKGROUND

10.      The Applicant served as a stoker in the engineering branch in HMAS Tobruk from 14 April 1953 to 1 September 1954.  In that period, the ship saw operational service off Korea from 3 June 1953 to 12 February 1954.  He completed his service engagement in 1957; there are no records available to the Tribunal in respect of any relevant medical conditions during his naval service.  The Applicant married shortly after leaving the Navy, and his wife informed the Tribunal that he did not agree with being in the service as a married man.  He worked as a panel beater for some three years, before working for Australian Iron and Steel Pty Ltd (Broken Hill Proprietary) at Port Kembla for a further three years.  From 1963 until he ceased work in 1983, he was employed as a coal miner by Australian Iron and Steel at Coalcliff Colliery.  His cessation of work followed a mine accident (cave in) when his partner was killed.  For a number of years thereafter he underwent intensive psychiatric treatment.  He has not worked since 1983.     

EVIDENCE

11.      The Applicant gave evidence that in the years after his naval service, the circumstances of an incident where his ship, HMAS Tobruk, had sunk a junk/sampan, kept coming back to him, circumstances that he considered represented an atrocity.  He informed his wife of this incident; he thought it was in the early days after his naval service, she could not recall when.  Her evidence to the Tribunal was that he said little about his war service, but she was aware of his concern at what he had witnessed, and that he felt ashamed.  The Applicant believed it was something he had to live with, and it was in the context of joining his local RSL Sub-Branch and Club that he spoke to a friend about his concerns, the latter suggesting that the Applicant apply for a disability pension as “it sounds like you might have this Post Traumatic Stress Disorder”

12.      His claim of 13 February 2001 described an occasion when his ship encountered three Korean junks hugging the North Korean shoreline.  He stated in that claim “our main guns fired three shells blowing these boats to pieces.  They were very large boats carrying supplies to the North Koreans.  But what shattered me was the fact that there were women and children aboard these boats.  Numerous families lived on them.  The boats were blown to pieces.  I regularly picture them in my mind.  I picture those women and children blown away.  At first it did not worry me, but as I grew older the event comes frequently to my mind.  I often get very moody with my wife which causes arguments and stress” (T4 page 18).

13.      On 15 March 2001, the Applicant saw Dr P J O’Brien, Consultant Psychiatrist, who records (T5 page 26) that the Applicant observed three shells being fired by Tobruk at three large (60-80 feet in length) junks in North Korean waters.  He goes on to say that “[h]e remembers at the time thinking there probably were women and children on board as he had seen small vessels with one or two families crammed onto them in ports.  He therefore presumed that there were probably many families on board and said that while he did not see women and children blown apart, he thought that probably occurred. … [G]radually over the years he had become more and more guilty about it … He has become increasingly distressed over the years…”.

14.       Dr O’Brien records the Applicant visualising a destroyer on his right hand side, moving in “three shells fired and three junks being blown up” (T5 page 27).  He records the Applicant as becoming increasingly silent, tearful and shaky when asked if he thought he had killed anyone.  Dr O’Brien concluded that the Applicant meets the criteria for PTSD, and, notwithstanding the effects from the more recent serious mining accident, the symptoms of this condition date back prior to the mining accident to his experiences in Tobruk.   Dr O’Brien records that Mrs Delahunty, in attendance at interview, stated that the Applicant suffered from eczema prior to the accident which she thought was probably stress related.  Dr O’Brien considered cognitive behavioural therapy warranted.  He further notes that the Applicant has only recently begun to discuss this matter with his treating general practitioner, Dr Marlton, who thought the mining accident might have exacerbated the symptoms.  On balance, Dr O’Brien thought the issues of guilt to be directly related to Navy experience, whether the mining accident exacerbated the symptoms or not.

14.      Following rejection of his claim for PTSD, the Applicant sought review by the VRB.  His application of 18 September 2001 implicitly expresses concern that the views of Dr O’Brien have not been properly considered, and contends that his PTSD, diagnosed by Dr O’Brien, arose from “destroying vessels in Korean waters” (T6).

15.      Chronologically, the next document relating to the facts of this matter is a report from Writeway Research Services dated 2 November 2001 (T9 page 41).  The attached Report of Proceedings (“ROP”) of Tobruk for July 1953 records that a “large motor sampan” was destroyed by gunfire on 16 July, this being standard practice when seen as they “have been used to great effect as minelayers by the enemy”.  A later report from Writeway, prepared by Commodore P M Mulcare and dated 23 January 2003 (Exhibit R1), records details of a discussion between the author and Commander P J Shevlin, who was the ship’s gunnery officer in 1953.  The salient points recorded from this discussion are that the action was probably conducted with the ship at Defence Watches which, subject to his engineering watchkeeping requirements, would not preclude the Applicant from being on the upper deck of the ship when the firing took place, that the sampan was some seven kilometres distant, and that no persons were observed on the sampan through the gun direction binoculars.

16.      Commander Shevlin also provided a written report dated 17 January 2003 (Exhibit R1, Attachment 2), in which he refers to his diary entries, wherein he records “we sink one large motor sampan” on 16 July, and “we shoot at sampans inshore” on the following day.   In further notes, he expresses uncertainty as to whether one or two vessels were sunk, but acknowledges that might be clarified in the ROP (which it is).   He further had an idea that a minelaying sampan was sunk later in the month, but neither his diary nor the ROP make any reference to such an incident.   He describes his recollection of the sinking of the sampan on 16 July as :

“… my clear recollection is of a dark coloured vessel approaching from the coast.  UN directives had forbidden coastal sampan traffic and there was Intelligence advice of minelaying by sampans.  When she was about 8000 yards, the Captain ordered a shot across her bows.  When she failed to stop, the Captain ordered ‘Engage’ and we fired a single turret salvo which scored a direct hit.  The sampan erupted in a giant explosion which caused the vessel to disintegrate.  There was no doubt her cargo was explosive!  ... I could not see any people out on the deck through Gun Direction binoculars …”

17.      The Applicant was examined by Dr P Morris, Consultant Psychiatrist, on 13 December 2001, having been referred by his treating doctor.  Dr Morris records the Applicant as speaking of “one unpleasant memory of his time in Korea”, when he witnessed the sinking of a North Korean junk, accompanied by a big explosion and lots of debris in the air (T9 page 52).  It was “apparently an unarmed vessel” and he thought there were “probably families including women and children on board”..  Dr Morris records that whilst the Applicant now understood that Tobruk was under orders to sink North Korean vessels, he still felt some guilt.  Dr Morris also notes that the Applicant has increasing memories of this incident, and nightmares of seeing women and children in the exploding sampan, since starting the process of seeking compensation from the Respondent.

18.      Dr Morris records that whilst the Applicant was under psychiatric treatment following the mining accident in 1983, he can now talk freely about that accident.  He notes that, during the examination, the Applicant was mildly anxious and “became much more anxious and tearful when he talked about the traumatic incident in the Korean War.  There was no formal thought disorder and no psychotic symptoms and he was not suicidal.  Mr Delahunty had no impairment on cognitive testing”.  He diagnosed a condition of PTSD as being of delayed onset, and commenced the Applicant on anti-depressant medication.

19.      The credibility of the Applicant as to what he observed on the occasion of the sinking of the motor sampan off North Korea was addressed by the VRB, and was pursued by the Respondent before this Tribunal.  The dominant issue was that the Applicant spoke of three junks, three shells being fired and women and children in his claim of 13 February 2001, and gave the same scenario to Dr O’Brien on 21 March 2001.  His response to Dr Morris some 9 months later, and subsequent to the report by Writeway Research Service of 2 November 2001, was to the effect that there was only one vessel, which probably had families on board. 

20.      In response to a request from the VRB to clarify this inconsistency, the Applicant stated (Exhibit R5):

“Just that I just got so mixed up with that there are so many thoughts going through my mind over the event and that I just made a mistake about the three.  I don’t – I cant explain it really but it’s always been the one.  One vessel that was sunk and I’ve just sort of been so nervous over it and everything going through my mind it’s got mixed up with how many there was.”

In response to further questioning, the Applicant said he was on the upper deck and off watch at the time, and that it was a “bit foggy”..  He thought it was a wooden junk, he could not see anything on deck, and he observed “a massive explosion and debris spattered across the water” after the ship fired.  He agreed that the vessel was “pretty small on the horizon”, and at least a mile from his ship.   

21.      In further response to the VRB, the Applicant stated that he assumed there were two or three families on board as it was a large junk, based on his observation of families living in such situations on sampans in Hong Kong.  He considered the sinking of what he described as an “innocent civilian boat” to be an atrocity.

22.      In evidence to the Tribunal, the Applicant confirmed that his normal duty on board was as a stoker, with watch-keeping duties in the engine and boiler rooms.  At the time of the incident, which occurred during the daytime, he was off watch and on the upper deck.  He observed “a dark object …big black sails and masts …way over close to the shoreline and then the ship fired one shell, which was a direct hit, and it blew up. There was a big ball of smoke and fire shot up in the air, and then it all just disappeared and that was it, everything was quiet.”   He could not recall hearing the warning shot.  He thought the vessel was a junk, but subsequently found it was listed as a motorised sampan; he would not know the difference.  He believed the vessel to be civilian and not navy, and hence saw no reason for it to be sunk.  His recollection is that, afterwards, word filtered through the ship that a direction had been given to ships to sink this type of vessel because they could be carrying mines or ammunition.  In response to his Counsel, the Applicant stated that he could not explain why he had earlier spoken of three vessels – at the time “I was seeing three … but I always knew there was one”.  He denied that the historian’s report had changed his thinking.  The Applicant stated that he was affected by this incident, because of the killing of civilians.  He believed there would have been a mother and a couple of children on the vessel, and he felt ashamed and guilty.   

23.      In referring to this incident on his claim form, the Applicant noted “PTSD approx 15 – 16 years later” (that is, after Korea).   He explained that this referred to the period in the late 1960s or early 1970s when he stopped marching on Anzac Day as he considered his war experience did not justify marching with returned servicemen.  He stated that he had no idea at that time that he had PTSD, and kept his war experiences to himself.  However, he had told his wife in the early days of his marriage of the Korean incident, although he could not recall the circumstances; he felt she would have realised this was the reason he stopped marching.  Counsel did not pursue this issue.  In cross-examination, the Respondent questioned whether the Applicant had any (psychiatric) symptoms prior to about 1968, the response being “I never knew I had any symptoms until I put this application in.  I had these memories ever since it happened but it was 15 to 16 years when I decided I shouldn’t be marching any more…”..   In response to a further question by the Respondent, the Applicant stated that he felt he should not be marching “when I first became aware of aggravation or disability”.

24.      The Respondent took the Applicant to the issue of how he knew there were women and children on board the junk, and suggested that the wording in the claim implied they were actually seen.  The Applicant agreed that the latter could be read into his claim, but re-affirmed that he was “presuming there was women and children”.   In response to a later question, he stated “one woman and most likely a couple of children”, and in a further response to the Respondent, stated “one woman and a child”, conceding that there was no evidence as to what people might have been on board.  In regard to the number of vessels, the Applicant stated that he was still thinking of three when he lodged his application to the VRB (18 September 2001), but denied that he had changed his evidence to one vessel on reading the Writeway report (Exhibit R1). 

25.      Dr Morris recorded that the Applicant considered that the vessel was unarmed.  The Applicant gave evidence that whilst the vessel could have carried rifles or pistols, he assumed it was unarmed because it was not a Navy boat.  Further, whilst he accepted that the Captain took action in accordance with his orders, he nonetheless felt guilty as they killed innocent civilians.  Dr Morris also recorded nightmares, whilst Dr O’Brien reports no evidence of nightmares.  The Applicant stated that he does not remember having nightmares, although his wife says he does.  Dr Morris also referred to symptoms in the last 12 months, and diagnosed, as earlier stated, delayed onset PTSD.   The Applicant was clear that Dr Morris had misunderstood the situation as symptoms predated the mining accident in 1983.

26.      The mining accident occurred in 1983, and both parties referred to various documents and reports by medical practitioners in respect of references to the Applicant’s naval service in the period following the accident.  In brief, the Applicant was injured and his partner killed when supporting ribs collapsed, leading to a fall of coal.  He was initially treated by his then general practitioner, Dr C Gow, then Dr S Marlton, (who remains his treating general practitioner) or another doctor in the practice.  The Applicant confirmed in cross-examination that he had never mentioned the Korean incident to Dr Marlton until about 2001, when he made his claim. 

27.      The Applicant was extensively treated by Dr N H Maclean, Consultant Psychiatrist, who diagnosed a “major episode of depression” after the mine accident.  In a letter to the Respondent dated 6 February 1986 (Exhibit T1), he comments on the Applicant’s war service as follows:

“… he told me he was stoker rising to the rank of leading hand during the Korean War, during which he spent some nine months overseas, of which more than one month was in active service aboard H.M.A.S. Tobruk.  Overall he spent six years in the Navy.  From the history I was able to obtain, I am not aware of any close relationship between his Navy service and the onset of his depressive problems, but I have not had access to his medical file from his time in the Services. …”          

The Applicant confirmed in cross-examination that he had not told Dr Maclean anything in respect of concerns during his Korean service, a situation the Respondent would have expected given that the Applicant had been seen on about 90 occasions and had informed Dr Maclean of two accidents in his life, one in respect of a motor vehicle accident involving his son, the second being struck in the face by a rope.  The Applicant responded that because of his depressive state at the time, Korea was not on his mind and “he did not know who he was or what he was doing”.   The evidence of the Applicant is that he did not see any Navy doctor in respect of any nervous problems or stress; to do so would not have been seen as appropriate in the circumstances of the incident.  

28.      In 1984, the Applicant was twice admitted to Prince Henry Hospital Psychiatric Unit for treatment.  Reports from Dr R F Barr, Consultant Psychiatrist, at Exhibit R4, make no mention of his Navy service, but notes observations by the Applicant’s wife as to his previous demeanour, that is, prior to the mining accident, as follows (report of 5 April 1984):

“The wife said her husband was normally a very conscientious, punctual man whose main hobby was rebuilding old cars and looking after his modern car. He was normally attentive towards his mother and a good and conscientious husband and father.  The wife said he had not had any psychiatric troubles in the past …”

The Applicant considered this a fair description.  In his attached clinical notes, Dr Barr merely notes that the Applicant had served in the Navy for 6 years.  In evidence, the Applicant stated that he had not told Dr Barr or a Dr Conloy of the incident in Tobruk, because of the state he was in.  In responding to the Respondent, he went on to say “I didn’t know I had the symptom, it was just a memory what I thought of an incident in the war in Korea”.

29.      The reports from Doctors Maclean and Barr, and the clinical notes from Prince Henry Hospital, are ample evidence of the seriousness of his psychiatric condition following the mine accident.  Dr Maclean records psychotherapy and treatment with antidepressants and some anti-psychotic medication, and, in the face of a major episode of depression, transferred the Applicant to Prince Henry Hospital as previously noted.  In 2001, Dr O’Brien notes that the Applicant was on medication for about eight years thereafter.  In the aftermath of the accident, the Applicant felt responsible for the death of his workmate but, in time, as he said in evidence, he came to realise it was an accident and there was no fault on his part.  He now believes this accident is well behind him. 

30.      Mrs Delahunty gave evidence to the Tribunal.  She described her husband as being suicidal and morose, and that he developed a habit of “counting everything” and stuttering, after the mining accident.  His condition remained very bad for some years, and for about ten years it affected their family life.  He still stutters on occasions when upset.   She believed that the Applicant mostly no longer considered himself responsible for the mining accident.  In the last seven years, effectively from when they moved to Windang, he has been able to speak of the mining accident.  He still does not like to speak of the incident in Tobruk.

31.      In cross-examination, Mrs Delahunty accepted that she had told Dr Barr that the Applicant had no psychiatric problems prior to the mining accident.  When asked whether he was normal, she insisted that she “didn’t understand the severity”, this seemingly being in reference to the belief that he had PTSD.  She said that her husband had not stuttered before the mining accident, that she had observed him having nightmares.  She was of the opinion that her husband stopped participating in Anzac Day marches because he felt unworthy in terms of his war service, a decision with which she disagreed.  

32.      As to his present difficulties, the Applicant stated that scenes on television, particularly Asian or war movies, can remind him of the boat incident.  When he sees an Asian person he can be reminded of the shelling incident.  Dr O’Brien notes that he was unable to accompany his wife to Hong Kong on a visit about 12 years ago, because “he could not go there because of what he had done”, which related to the Korean incident.  In response to the Tribunal, the Applicant confirmed that he had previously visited Hong Kong prior to the occasion in question, this being after his Navy service.  His sleep is disturbed.  Since he and his wife moved to the new home at Windang some seven years ago, he has taken up the hobbies of social and competition darts and snooker. He described himself as organised around the home, and as a very good husband, he inferred that he was easy to live with.

MEDICAL EVIDENCE

33.      Reports from Doctors Maclean, Barr, O’Brien and Morris have already been referred to in considering the Applicant’s service career and the mining accident.  Dr A Dinnen provided psychiatric reports for the Applicant at Exhibits A1 to A4, and gave oral evidence.  Dr R Haik  provided a psychiatric report at Exhibit R2 and gave oral evidence.

dr dinnen

34.      Dr Dinnen saw the Applicant on 19 December 2002 (Exhibit A1 refers).  He subsequently provided further comment on 24 February 2002 (Exhibit A2) in respect of the Writeway reports, on 20 June 2003 (Exhibit A3) in respect of the report by Dr Maclean (Exhibit T1) and the report by Dr Haik (Exhibit R2), and, finally, comment (Exhibit A4) following the receipt of the clinical notes from Prince Henry Hospital.  None of the later documentation led to any change in his opinion that the Applicant has a “chronic psychiatric illness which appears to date from his experience in Korea” (Exhibit A1 page 5), the diagnosis being PTSD.

35.      Dr Dinnen took a comprehensive history from the Applicant. His initial comment relates to the Applicant ceasing to march with ex-service people on Anzac Day, the reason given being that “what am I doing here.  I only had one incident” (Exhibit A1 page 2).  He records the Applicant stating that he felt ashamed of his previous involvement in marches, and subsequently felt depressed and sad.  There is no mention that the incident in Korea, in itself, was the cause of ceasing his involvement. 

36.      The history of the Applicant’s naval service and the shelling incident off Korea, as recorded by Dr Dinnen, is similar in part to that given in the claim and to Dr O’Brien, in that the Applicant refers to “innocent civilian vessels”, to “boats” being blown to pieces, and that he imagined families were on “those ships”.  Dr Dinnen notes that only one ship was shelled, the Applicant describing it as “like a cargo ship”, 40 or 50 feet long.  Tobruk fired one shell only.  The Applicant referred to the sinking as “a shameful act” and “we sank a little wooden boat”, and described his memories as “I see a quick glimpse of the junk and next minute a big explosion.  There is debris and flames, shooting up in the air and splashing across the water.  Then everything went quiet.  I am facing the junk and the next thing I am picturing people on the junk looking back at my ship coming towards them and they are panicking, seeing the ship coming in and I see the puff of smoke and the shell is fired”.  This particular memory “goes on and on”.. At times, he has other thoughts about their parents, or sees a woman with her hands out towards him.

37.      Dr Dinnen records that the Applicant felt he could always handle these memories and kept them to himself, but he still gets emotional and tears come to his eyes.  It is not clear as to whether these comments were made in respect of the Korean incident or the later mine accident.  The Applicant advised Dr Dinnen that he has been taking the anti-depressant Zoloft for eighteen months to two years and it “helps him a lot”..  He also indicated he was attending a psychologist, having made some ten or twelve visits prior to the examination.  There is no other evidence before the Tribunal to that effect.  There was no history of nightmares. 

38.      Dr Dinnen records that the Applicant considered himself to be meticulous, but a worrier.  He indicated that his thoughts (and guilt feeling) in respect of the Korean incident were more frequent and distressful than those in relation to other incidents or accidents.  Dr Dinnen considered the account given to him by the Applicant was consistent with that given to Dr O’Brien, with the exception of the references to three ships and three shells.  Dr Dinnen notes that Dr Morris was also of the opinion that the Applicant had PTSD as a result of the incident off Korea.  He does not refer in his report to the opinion of Dr Morris that the condition has a delayed onset, symptoms being evident only in the last 12 months (T9 page 52).  Finally, in commenting on the Prince Henry Hospital clinical notes, Dr Dinnen opined that, whilst the diagnosis at that time, following the mine accident, was depressive disorder, it would now be regarded as PTSD.

39.      Dr Dinnen considered the Applicant to be a credible witness.  Whilst he considers this to be an unusual case, in that witnessing a vessel being sunk at sea could cause such a traumatic response, he nonetheless opines that a psychiatric illness can be triggered by “an event that may or may not appear to have some unique and idiosyncratic significance for that individual”..   In commenting at Exhibit A2 on the report by Commander Shevlin, he notes that “the [Applicant’s] subjective impression at the time is fixed in his mind … it is not uncommon that an individual’s perception of stressful events is not necessarily an objective and realistic one … .”

40.      In oral evidence, Dr Dinnen confirmed his view that this matter is “an unusual example of ongoing psychiatric illness following a subjectively traumatic experience”, and that through the years, the Applicant had felt some personal responsibility.  He considered some stuttering when interviewed by Dr Haik, and before the Tribunal, to be evidence of anxiety and emotional disturbance when speaking of the Tobruk incident.  He considered the fact that the Applicant had not acknowledged nor dealt with his problems following the Tobruk incident until recently was more common than not in PTSD, where one kept guilt and shame to oneself.  He saw no significance in the Applicant initially referring to three ships, suggesting that he would have seen other sampans at times, and suffered some form of bundling up of memories.  He considered the incident met the criteria of severe stressor, which he referred to as a “second order stressor” to emphasis the unusual circumstances in this matter.

41.      In cross-examination, Dr Dinnen held to the view that the Applicant’s perception was relevant to the issue as to whether this incident was a severe stressor.  The evidence of Commander Shevlin did not exclude the possibility that there were innocent civilians on board the Korean sampan, and did not take away from the perception held by the Applicant.  Dr Dinnen seemingly accepted that the circumstances of the Applicant may have turned out differently had he been authoritatively informed at the time of reasons for the sinking but, on the evidence, that had not occurred.  He considered that the depressive disorder condition resulting from the mine accident had been successfully treated.  When questioned as to how one might reconcile the fact that the Applicant has dealt with that traumatic death of a workmate, yet has apparently failed to cope with an imaginary situation, Dr Dinnen replied that the former had been addressed through intensive psychiatric treatment, whilst the latter had not been identified or treated until recently. 

42.      The Respondent suggested that had there been any earlier psychiatric condition prior to the mine accident, including relevant incidents in his Navy service, it would have been identified in the course of treatment by Doctors Maclean and Barr.  He particularly noted that the former had seen the Applicant on some ninety occasions.  Dr Dinnen believed this would only have been the case had it been specifically investigated, and the issues at the time would have been related to day-to day- life events and the mine accident.  He further considered that the Applicant informing Dr Maclean of the motor vehicle accident of his son, and being struck in the face by a rope, was indicative that they were accidents, rather than incidents, and the Korean incident was also of “a lesser magnitude”.  In his report at Exhibit A1, he took the opposite view, observing that “[h]is ability to overcome the effects of a serious mine accident indicate that the traumatic event in Korea, as he experienced it, was of greater magnitude”. In response to the Respondent, he stated that he could not exclude the possibility that the Korean incident was not a problem at all.

43.      Dr Barr had recorded in his report (at Prince Henry Hospital) that Mr Delahunty said her husband “had not had any psychiatric troubles in the past, but now she was seriously worried about his condition”, and that in the past his mood was “normal”.  Dr Dinnen considered this statement of no relative significance, in that it did not establish whether or not he had a psychiatric condition, just that he was not talking about it.  Dr Dinnen held to the view that PTSD had been present since 1953, the following extract of the transcript (pages 71 and 72) in respect of his responses to the Respondent being relevant:

“ When I point in 1984 when he is admitted to hospital following this severe trauma, the mine accident and his wife says he has not had any previous psychiatric problems in the past, you say that is consistent with PTSD for the last 30 years?  --- Yes, because she is not aware of what a psychiatric diagnosis is, is she?

She is aware of what he is like, she lives with him? --- Yes but he doesn’t know that he has got a psychiatric illness.  He knows now.  If he doesn’t know till now how is she going to know till now?

You have said there were symptoms present since 1953? --- Yes, symptoms which were not understood as being what they are, symptoms which would disturb him, discomfort him, distress him, which had been present for 50 years but were not formally identified as being attributable to a psychiatric illness until recent times, until very recently.  So if he is not aware of it, if he doesn’t go to his doctor in 1960 and say, Doctor, I am having these terrible memories about the junk please what do I do about it, then how is his wife going to be aware?

If he is not aware of it how can you diagnose PTSD since 1953? --- He is aware of it but he is not aware that it is a medical illness for which he needs attention.  Most cases of Post Traumatic Stress Disorder don’t come to medical attention, like most cases of depression.  That doesn’t mean they are not present.”  

44.      Dr Morris diagnosed late onset PTSD in the previous 12 months, which the Respondent suggested was at odds with Dr Dinnen’s opinion that PTSD had been present since 1953.   Dr Dinnen considered that Dr Morris had clinically identified the condition, but maintained it had been present since 1953, and the “patient’s account is that he had symptoms consistent with that diagnosis since 1953”..   Dr Dinnen did not consider there were any features of Obsessive Compulsive Disorder, as diagnosed by Dr Haik. 

45.      Under re-examination, Dr Dinnen opined that the criteria for a severe stressor as defined in the Statement of Principles would be satisfied because the incident involved the deaths of others.  Finally, when asked by the Tribunal whether the diagnosed condition of PTSD could be a continuation from his condition after the mining accident, Dr Dinnen suggested that the condition in 1983 could have been a supplement to an existing condition which had arisen from the junk incident, but he considered it more likely that the Applicant recovered after the mining accident, and the present condition is related to the junk incident.

dr haik

46.      Dr Haik saw the Applicant on 27 February 2003 (Exhibit R2).  He considers he does not suffer from PTSD, and does not meet the criteria in Statement of Principles Instrument Number 3 of 1999, as amended by Instrument Number 54 of 1999, concerning Post Traumatic Stress Disorder (“SoP 3/1999”).  Based on what he considers to be an inconsistent history, he suggests that a diagnosis of Obsessive Compulsive Disorder (OCD) might be made.  He notes the view of the Applicant that “thoughts and upsets from the mine accident have resolved”, but recurrent images of the Korean incident have occurred most days and nights for 50 years.  He notes that the Applicant did not appear “tearful or… upset … he did stutter briefly as he spoke of his distress about the possible death of women and children”.  Dr Haik generally records the plural “women” but quotes the Applicant as believing “there was a family on board”.  The evidence of the circumstances of the shelling accords with that given to Dr Dinnen in respect of one vessel, one shell and a significant explosion. 

47.      As recorded by Dr Haik, the Applicant considered that, in the circumstances, the Captain “did the right thing” in not sending a boat to investigate the craft.  Again, he heard at some time later, which may have been that day, that the ship had orders to sink such vessels..   Dr Haik also records that the Applicant could offer no objective evidence that the vessel had been carrying women and children.

48.      Dr Haik records that the Applicant had experienced sleepless nights after he left the Navy, (although the Applicant said that his wife called them “restless” nights), and hence opines that the psychosocial stressor within the SoP timeframe could not be met in respect of the 1953 incident.  The Applicant also spoke of seeing Asian women and children on almost all nights before falling asleep, a woman holding her arms out towards him, who he also sees three to four times a day, and Tobruk approaching and firing a gun.  He might also picture sailing into Asian ports and seeing sampans with families on board.  Dr Haik records that he had never mentioned these thoughts to anyone except his wife, nor did he consult a psychiatrist because he felt too guilty to admit the incident.  As regards the mining incident, Dr Haik records that the Applicant rarely experiences thoughts of the accident as “I come to realise I wasn’t responsible”; whereas he cannot apply the same reasoning to the Korean junk incident “[b]ecause that was deliberate”.  

49.      Dr Haik opines in his report that there is “considerable inconclusiveness” and “the inconsistencies are substantial” in the history given him.  He considers it unlikely that the Applicant has suffered “uninterrupted emotional turmoil” for some 50 years, given that he never sought help until told he had PTSD by another ex-serviceman in 2001, and his history is inconsistent in respect of what he saw, viz three boats, three shells, and what he told different medical specialists.  He refers to the comments by Dr Morris as to memories being revived in the course of making this claim, and the subsequent diagnosis of delayed onset PTSD.  He further believes it unlikely that such a condition as claimed would not have been mentioned to Dr Maclean by the Applicant in the aftermath of the mine accident. Dr Haik considers that if the Applicant suffers from OCD, clinical onset could only have arisen after 1983.  

50.      Dr Haik concludes his report by suggesting that the Applicant did not experience a severe stressor as he could only assume there were women and children on the junk, and that he could not meet the necessary causal factors (for PTSD); in particular there was no evidence of distress or impairment in social, occupational or other areas of function.  He considered the mining accident was a severe stressor, and the resultant conditions consistent with PTSD, which no longer existed.  Finally, he could not identify any psychosocial stressor within a two year period that might support the contention that the Applicant suffered from OCD.

51.      During examination-in-chief, Dr Haik confirmed that he had not seen the Prince Henry Hospital clinical notes when writing his report.  However, they re-affirmed his view that he would have expected the memory of the Korean incident, if it was of the magnitude now suggested, to have been raised at that time.  That was not the case.  He believed what they did show was obsessive compulsive traits, conscientiousness and perfectionism, illustrated also by counting and obsessive thoughts.  In his view, there was no evidence to suggest any psychiatric condition prior to the mine accident.

52.      He further considered that depressive disorder, diagnosed in 1984, was the proper diagnosis, and not PTSD which is predominantly an anxiety-based condition.  He does not consider the Applicant’s mental picture of the Korean incident to be a severe stressor, he having not witnessed nor been confronted by an actual or real injury or death.  He further stood by his earlier view that most of the diagnostic criteria for PTSD had not been met, or where they had, they related to the mining accident.  In particular, the Applicant left the Navy at the completion of his service and worked “assiduously” without any evidence of work or home difficulties for the next 26 years until the mine accident.

53.      Cross-examination led to a lengthy discussion in respect of the components of OCD, the witness’ point being that obsessive or compulsive, or indeed both, elements might be present.  Dr Haik defined the characteristics of Obsessive Compulsive Personality Disorder wherein there is a preoccupation with lists, rules and perfection, and which does not necessarily lead to the condition of OCD.  He considered that whilst the latter condition may have been present in 1984, having arisen in the aftermath of the mine accident, it became distinct in 2001. In response to Mr Vincent, in respect of the need to avoid a too literal interpretation of the indicators of OCD, he opined that the Applicant was not recognising that images were a product of his own mind; rather, he is believing he saw them.  He suggested this may have accounted for a lack of early remedial progress as reported by Dr Maclean after the mine accident. 

54.      Dr Haik restated his view that stuttering was not an indicator of nervousness nor of PTSD.  He accepted that intrusive recurrence of a traumatic event can be an indicator of PTSD, as argued by Dr Dinnen, but did not see that appropriate in this matter, which was based on a manufactured fantasy.   Mr Vincent suggested that if the Applicant had OCD in terms of the Korean incident, it would have been evidenced in 1983;  Dr Haik agreed but, given the history in 1983 by Mrs Delahunty, believed it had developed following the mine accident.         

SUBMISSIONS

applicant

55.      Counsel for the Applicant emphasised that the claim rests on PTSD, a diagnosis supported by three psychiatrists, and that Dr Dinnen, in giving oral evidence, remained firm in his views.  The SoP for PTSD is SoP3/1999.  The destruction of the sampan was considered to be a sufficient stressor; the use by Dr Dinnen of the expression “second order stressor” has no lesser meaning but was merely used in the context of the unusual circumstances of this claim.  The Applicant referred to the decision in Stoddart vRepatriation Commission [2003] FCA 334, wherein Mansfield J at paragraph 55 said that the stressor is to be “judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events”.

Counsel suggested that the test as defined by Mansfield J was a mixed subjective/objective test, and submitted that the subjective response of the Applicant was to overlay the explosion with the belief, from his observations of that type of craft, that there were civilians on board.  Counsel further submitted that the view of Dr Dinnen that the condition of PTSD had existed, albeit not diagnosed, from 1953, was supported on the evidence before the Tribunal.

56.      Counsel acknowledged that this is not an easy diagnostic matter, but  submitted that the only contrary opinion to the diagnosis of PTSD was that of Dr Haik, who in turn had made various concessions such as intrusive recurrence of an traumatic event, as postulated by Dr Dinnen, can be an indicator and an appropriate stressor for PTSD.  Counsel submitted that the view of Dr Haik that PTSD was not an appropriate diagnosis because it was a fantasy is not precluded by SoP 3/1999.  Counsel also inferred that the views of Dr Dinnen must be accorded more weight, because Dr Haik did not have the same level of PTSD experience.  Dr Haik noted in his report that the symptoms of factors 2(b) (A), (B) and (C) were met, but not the equally imperative factor at (F);  Counsel submitted that Dr Haik shifted his position in oral evidence by stating that his reference to factors (A), (B) and (C) factors referred to the mining accident.  Counsel referred to indicators such as the Applicant not watching war movies of certain types and sleeping problems as being indicators that fitted the SoP 3/1999 criteria.  Counsel also contended that if it was accepted that these factorial indicators were not present, then equally a condition of OCD could not exist. 

57.      Mr Vincent submitted that the fact that the Applicant had informed his wife of the Korean incident “long before the mine accident”  and in doing so, as she said in evidence, “was very sad and did not want to embellish”, was evidence that he was affected by the incident.  So, too, it was relevant that he ceased participating in the Anzac Day marches because of the Korean incident, and that he referred to having killed three people in the aftermath of the mining accident, when only one person had been killed in that accident.  As to why he did not mention the Korean incident to medical staff when being treated after the mine accident, Counsel postulated that medical personnel were too busy addressing the major disorder before them to “go fishing for anything else”..  Further, the medical staff were focussing on the symptoms of depression rather than the causative agent, the traumatic event.  Counsel also postulated that the wording by Dr Maclean in his report of 6 February 1986  (T1), wherein he stated that he was not aware of any “close” relationship between his Navy service and the onset of his depressive  problems, could be inferred as being a guarded remark in the absence of more records.           

58.      Counsel submitted, and the Respondent agreed, that OCD is not covered by a Statement of Principles Instrument, and that the diagnostic criteria is that at DSM IV (Exhibit A5) pages 434 – 435.  He did not consider the criteria was met, drawing on C in respect of the necessary period of daily distress, (more than one hour per day): if, as Dr Haik argued in the context of PTSD, there was not interference with functioning, then the same argument must rule out OCD..  He submitted that the Applicant did not meet the condition at criteria B of recognising that the obsessions were excessive or unreasonable, as conceded by Dr Haik.  Counsel noted that the diagnostic features of OCD (page 429) refer to worries generally being unrelated to real-life problems, whereas in the mind of the Applicant, the problem did happen, and he is unable to deal with it.  Finally, Counsel referred to the observation by Dr Haik in cross-examination, that no-one knows what causes OCD, but it could be triggered by a traumatic incident.  Counsel went on to refer the Tribunal to a proposition put by him to Dr Haik that  “the mine incidence set him off and the therapy worked through that one, he started picking up on other things that might have troubled him in his perception” to which Dr Haik replied “you could well be right”.

respondent

59.      The Respondent submitted that the PTSD diagnosis required acceptance that there was a severe stressor, which was disputed in the circumstances, and further, both Doctors O'Brien and Morris, in making that diagnosis, did not have access to the report from Dr Maclean and the clinical notes from Prince Henry Hospital, and hence their opinions must be given less weight.  The Respondent maintained the view that OCD arising from the 1983 accident was the appropriate diagnosis for the reasons given by Dr Haik, and whilst the latter had some difficulty in applying this diagnosis, it merely reflected the diagnostic problems in this case.  The Respondent suggested that a third, but less favoured, diagnosis of depressive disorder – as properly diagnosed after the mine accident – was an alternative, which would be considered under SoP No. 58 of 1998.  Noting that Dr Morris spoke of anti-depressants, the Respondent opined that those comments suggested there might be ongoing symptoms of depression.

60.      The Respondent drew on Dr Haik’s report in respect of the Applicant’s claim that he felt too guilty to talk about the Korean incident for 50 years, in that he had spoken with four psychiatrists with no apparent difficulty and shown inconsistencies in history.  The Respondent evidenced that the Applicant himself had indicated that PTSD occurred some 15 – 16 years after the Korean incident, that he had initially in his claim, and for some months thereafter, referred to three junks, three shells and women and children in the plural. Before the Tribunal, the Applicant was quite adamant that there had been only one sampan, with the supposition that there was one woman and possibly two children on board, and he had known that all along.  The Respondent suggested, and relied on the report by Dr O’Brien, that the Applicant found it necessary to rely on the civilian women and children theme to support his claim for PTSD.

61.      As did the Applicant, the Respondent referred the Tribunal to the Full Court decision in Benjamin v RepatriationCommission (2001) 70 ALD 622, in respect to the determination of a diagnosis to its reasonable satisfaction. The Respondent emphasised that, in respect of PTSD, this includes “the primary criteria of experiencing or being confronted with an event, etc, in other words, a severe stressor”.  The position of the Respondent is that this primary criteria was not met, except in the circumstances of the mining accident.   The Respondent submitted that, whilst Dr Haik had conceded that the Applicant met some of the diagnostic criteria in section 2(b) of SoP 3/1999, there was no evidence that the Applicant suffered “intense fear, helplessness or horror”, as required under (A).  As to (C), an avoidance of stimuli, the Respondent submitted that the reliance by the Applicant on the claim that he did not march on Anzac Day because of his guilt feeling, was not supported by the evidence, wherein he had stated that it was because of less meritorious or worthy service.  Nor was there any evidence of significant distress or impairment in functioning as required under (F).  The Respondent submitted that the objective criteria of distress in impairment, other than in the context of the mine disaster, was not satisfied, stating “There has been no loss of interests and … certainly no impairment of social functioning”.

62.     In respect of the earlier opinion of Dr Dinnen, that the Applicant’s ability to overcome the mine accident indicated that the event in Korea was of greater magnitude, the Respondent suggested this was bizarre, given the history of the events and his responses.  The Respondent further submitted that due account had to be taken of the fact that neither Dr Marlton, the treating practitioner, nor the psychiatrists whom he saw on many occasions in the aftermath of the mine accident made any reference to a Korean experience, which was first mentioned in 2001.  The Respondent disputed that any such inference, as suggested by the Applicant,  could be read into Dr Maclean’s report of 1986, and due regard had also to be paid to the advice by Mrs Delahunty to Dr Barr that, prior to the mining accident, his mood had been normal.

63.      The Respondent submitted that the Applicant was selectively accepting Navy official advice, in that he accepted that there was only one vessel, that it was engaged at 8000 yards, and that it was carrying mines/explosives, but would not accept there was no evidence of women and children being on board.  The Respondent submitted that unlike “perception”, which he defined as “gain[ing] knowledge through one of the senses … etc”, this was a situation of “imagination” or “a mental image of something not actually present to the senses”.  That is, it was fantasy.   With regard to the decision in Stoddart (supra), as relied upon by the Applicant, the Respondent opined that that matter was concerned with perceived threat, a situation not faced by the Applicant.  The Respondent submitted that there was nothing pointing to a reasonable hypothesis in terms of a severe stressor in 1953, drawing on the decision by Kenny J in Connors v Repatriation Commission (2000) 59 ALD 61 that an hypothesis must be raised and supported by the material, and the Full Court decision in Bull v RepatriationCommission (2001) 66 ALD 271.

64.      In response, Mr Vincent submitted that, as shown in the transcript, the Applicant had been “shocked by the event”, and stated in evidence “I was so upset that I thought we had deliberately killed civilians.”   Further, from the evidence of Mrs Delahunty, the Applicant had stopped participating in Anzac day marches because of his shame over the Korean incident.  He disputed that the comment by Dr Morris regarding problems arising in the last 12 months could be read as if they had not previously been present, that there was evidence of sleep difficulty, and that due regard need be paid to the passage of time, and the Applicant’s memory of detail. He rebutted the suggestion by the Respondent that the reasoning in Stoddart (supra) did not apply to the Applicant in this matter.

PSYCHIATRIC CONDITION

65. Section 120(4) defines the relevant standard of proof, that of reasonable satisfaction, that must be applied in determining the appropriate diagnosis of any medical condition. Three psychiatric conditions have been put before the Tribunal, PTSD as diagnosed by Drs O’Brien, Morris and Dinnen, OCD as a suggested diagnosis by Dr Haik and depressive disorder as put forward as an alternative by Dr Haik. Section 120A of the Act applies to PTSD and depressive disorder in that relevant Statements of Principles have been determined by the Repatriation Medical Authority. As agreed by both parties, there is no Statement of Principles in respect of OCD.

66.      SoP 3/1999 concerns PTSD.  The criteria that must be met for this psychiatric condition, (being derived from DSM IV), are:

“(A) the person has been exposed to a traumatic event in which:

(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii)the person’s response involved intense fear, helplessness, or horror; and  

(B) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii)      recurrent distressing dreams of the event;

(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);

(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii)      inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v)       feeling of detachment or estrangement from others;

(vi)      restricted range of affect (eg, unable to have loving feelings);

(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i)         difficulty falling or staying asleep;

(ii)        irritability or outbursts of anger;

(iii)       difficulty concentrating;

(iv)       hypervigilance;

(v)        exaggerated startle response; and

(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

attracting ICD-9-CM code 309.81.”

67.      The Applicant claims that the condition of PTSD relates to, and arose from, the occasion when his ship sank a motorised sampan off the coast of Korea in 1953, his belief being that a civilian family of a woman and a couple of children were on board and killed in the explosion.  There is no evidence before the Tribunal to establish whether a family was embarked or not.  In order to sustain this argument, it is necessary that the psychiatric condition arising from the major mining accident 30 years later, from which the abundant evidence is that the Applicant experienced a “major episode of depression”, subsequently described by Dr Dinnen as “depressive illness … that we would now regard as Post Traumatic Stress Disorder”, is no longer in evidence.  The position of the Applicant is that such is the case, that he no longer feels he had any responsibility for the death of his workmate, and the accident is well behind him.  Mrs Delahunty generally agreed, but when asked if her husband still held himself responsible for the accident, her reply was somewhat less positive when she said “… I don’t think he does nearly as much … he will talk to me now, in the last seven years, since we have moved actually but he doesn’t want to dwell on it.  I think he is coming to terms in some measure with that”.        

68.      The only references to depressive conditions or psychiatric disorders between 1953 and 2001, when the Applicant saw Dr O’Brien at the request of the Respondent following receipt of the claim for PTSD, are those flowing on for some years following the mining accident.  Nowhere in those detailed reports and clinical notes is there any indication of Navy service problems, or the Korean sampan incident in particular.  Dr Dinnen and Mr Vincent both submitted that this was of no real significance in that the attention was being paid to the resolution of the severe depressive condition arising from the mining accident.  Dr Haik and Mr Marsh both took the opposing view that the absence of any reference was indicative of the fact that there was no problem.

69.      Dr O’Brien saw the Applicant in 2001.  The history provided by the Applicant contained a number of misleading statements as became evident in evidence to the Tribunal, such as three junks, three shells, and  “he presumed that there were probably many families on board”.   Dr O’Brien records that the Applicant becomes distressed when thoughts of the incident and the killing of civilians comes to mind, a guilt feeling which was also reflected in a decision not to accompany his wife to Hong Kong some 12 years ago, albeit it had done so some years earlier, irritability, and restlessness in sleeping but no personal evidence of nightmares.  Dr O’Brien carried out a structured interview for PTSD, and concluded that the Applicant meets the criteria, the major focus being guilt.  He notes that whilst he also suffered a “further serious accident”, (an unusual phrase in the circumstances), “it would appear that his symptoms … do date back prior to the accident and are related to his experiences … while in the Navy”.   As earlier noted, Dr O’Brien also records that the Applicant had only recently begun to discuss these issues with his general practitioner, Dr Marlton.

70.      Dr Marlton subsequently referred the Applicant to Dr Morris.  The history he obtained related to a single junk, but again referred to women and children, and an assumption that the vessel was unarmed.  Dr Morris described the Applicant as not wanting to talk or think of the incident but feeling sad when he gets memories, becoming agitated, and avoiding war movies and news of war disasters.   Dr Morris does not record whether he spoke with Mrs Delahunty, but states she referred to the Applicant’s crankiness with grandchildren, but nonetheless he has no loss of interest and a good relationship with her.  The Applicant reported sleep difficulties, and poor concentration.  Of interest, Dr Morris records that the Applicant ceased having unpleasant memories of the mining accident associated with guilt “about two or three years ago”.  He diagnosed PTSD “as a result of the incident he witnessed in the Korean War …” , and as being of a delayed onset, stating that symptoms have occurred in the last twelve months as he worked through a compensation process.  As previously noted, the Respondent drew on this time-line as evidence that a psychiatric condition was of recent origin, an argument rejected by the Applicant.

71.      The Tribunal has had placed before it the evidence from three psychiatrists that the Applicant has Post Traumatic Stress Disorder.   In various instances, the history given has been inconsistent or at variance with the known circumstances of the Korean incident.  In respect of the structured PTSD interview undertaken by Dr O’Brien, and in the absence of any knowledge of what defining parameters, if any, were given the Applicant by Dr ‘O’Brien, the Tribunal notes that the questions refer to “experiences” in the plural, and hence any differentiation between the Korean incident and the mining accident is not evident. 

72.      In his submission, the Respondent dwelt at length on the inconsistencies in evidence of the Applicant, both in terms of the history he gave, the selective acceptance of Navy documentation and the symptoms he experienced.  He noted that Dr O’Brien and Dr Morris had reached conclusions without the benefit of seeing the report by Dr Maclean and the Prince Henry Hospital clinical notes, and that the Applicant did not meet the criteria in SoP 3/1999 in respect of “intense fear” (A), “distress in impairment” (F) and to a lesser extent “avoidance of stimuli” (C).  However, the Tribunal considers there is sufficient material before it to meet the descriptive criteria for PTSD as required under paragraph 2 (b) of SoP 3/1999, and on balance, and to its reasonable satisfaction, finds that the Applicant suffers from Post Traumatic Stress Disorder.  Having reached that finding, which is the condition under which the claim has been made, it is not considered necessary to consider the contention that the correct diagnosis should be Obsessive Compulsive Disorder nor the alternate Depressive Disorder.  The Tribunal takes cognisance of the difficulty acknowledged by Dr Haik in making the former diagnosis in the circumstances of this case, and that the latter diagnosis was acknowledged as a lesser alternate. 

CASE LAW AND THE SEVERE STRESSOR TEST

73. A reasonable hypothesis has to be raised connecting PTSD with the Applicants’ relevant service.. The High Court considered the proper application of section 120 of the Act in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 thus:

“The position may be summarised as follows: (1) First, sub-s.(3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis”

74.      The Full Federal Court has held in Repatriation Commission v Deledio (1998) 83 FCR 82 that, in operational service matters such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim for a war-caused disability, namely:

“(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

(ii)If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

(iii)If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

(iv)The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved”.

75.      The case for the Applicant is based on an argument that he experienced a severe stressor in 1953, that is prior to the clinical onset of PTSD, in that he witnessed (or was confronted with) an event in which he believed civilian people had been killed, that is, it involved actual death.  At the outset of the hearing before the Tribunal, and in earlier considerations of this claim, the Applicant considered the incident to be an atrocity, (as indeed did Dr Dinnen initially on the history he had obtained).  In cross-examination, the Applicant maintained that view, and hence subparagraph (iii) of the definition of “experiencing a severe stressor” becomes relevant.   

does the material point to a hypothesis?

76.      The answer to this first step in Deledio (supra) must be in the affirmative.  The Full Court in Deledio determined that there is no question of fact finding at this stage.  It is sufficient that before the Tribunal is evidence that an event occurred which the Applicant believed involved death, and which he considered to be an atrocity, and thus he believes he experienced a severe stressor.  The hypothesis put before the Tribunal is that resulting from this severe stressor, he developed post traumatic stress disorder.  The material before the Tribunal points to such a hypothesis and thus Step 1 is satisfied.

is there a statement of principles in force?

77. Step 2 requires the Tribunal to determine whether there is in force a Statement of Principles determined by the Repatriation Medical Authority under section 196b(2) or (11) of the Act. The parties agree that SoP 3/1999 is the appropriate Instrument. SoP 3/1999, as amended, defines the factors that must be related to service as follows:

“Factors that must be related to service

4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5.The factors that must 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

(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

(c)inability to obtain appropriate clinical management for post traumatic stress disorder.        

Factors that apply only to material contribution or aggravation

6.Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person’s post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; …

is the hypothesis consistent with the template in the sop?

78.      Step 3 requires the Tribunal to consider whether the hypothesis is reasonable, that is, does it fit and is it consistent with the SoP?  The hypothesis raised must contain one or more of the factors which the Authority has determined to be the minimum that must exist, and this factor must be related to the Applicant’s service.  The relevant factor in this instance, and the only factor put before the Tribunal, is that at paragraph 5 (a) of SoP 3/1999, that is experiencing a severe stressor prior to the clinical onset of PTSD.  

79.      “Experiencing a severe stressor” is defined under paragraph 8 as:

“… 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 Veteran’s Entitlements Act applies, events that qualify as severe stressors include

(i)        threat of serious injury or death; or

(ii)       engagement with the enemy; or

(iii)witnessing casualties or participation in or observance of casualty clearance, atrocities or abusive violence”

80.      Clinical onset is not defined in SoP 3/1999.  In Re Robertson and RepatriationCommission (1998) 50 ALD 668, the Tribunal described clinical onset thus:

“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …” 

This definition was followed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750, and acknowledged by the Full Court in Lees v RepatriationCommission [2002] FCAFC 398. It is in turn followed by this Tribunal. The point at issue, apart from the Respondent’s position that the condition of PTSD is not evident, is that Dr Dinnen maintained that clinical onset occurred in 1953, immediately following the Korean incident, whereas Dr Morris gave his opinion that PTSD was of delayed onset. SoP 3/1999, unlike the instruments relevant to some other diseases, does not place a maximum time criteria after experiencing a stressor (or psychosocial stressor) on clinical onset. Hence the difference in the time at which clinical onset occurred between Dr Dinnen and Dr Morris is of limited significance, the issue being whether factor 5(a) in terms of the severe stressor was met, and whether the hypothesis is reasonable and that it fits and is consistent with SoP 3/1999..

81.      The significant matter before the Tribunal is therefore whether the Applicant experienced a severe stressor, as defined, this being necessary to establish whether the hypothesis raised is reasonable and is consistent with the template.  The position of the Applicant is that his belief that a woman and children were killed when the sampan was sunk by gunfire has not been disproved, that in effect he confronted death, and observed an atrocity.  The Respondent’s position is that this argument hangs on a fantasy, given that no persons were observed to be on the sampan, nor is there any evidence that a woman or children were embarked. 

82.      The Applicant drew on the reasoning in Stoddart (supra), citing Mansfield J at paragraph 55 wherein he stated:

“In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing these events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”

Mansfield J was addressing the perception of threat as it may have been seen or experienced by the applicant as directed at himself.  In this matter, there has been no evidence put before the Tribunal that the incident relating to the believed death of a woman and her children was in any way a threat to the Applicant.  Instead, it related the belief that an incident occurred.

83.      In the recent matter of Woodward v Repatriation Commission [2003] FCAFC 160, the Full Court considered the definition of “experiencing a severe stressor”, concluding that the tribunal in that matter had considered the expression in too narrow a manner when addressing Deledio (supra) Step 3.  Before considering Woodward further, as the conclusions of the Full Court may apply to this matter, the established facts can be summarised:

a.HMAS Tobruk sank a sampan/junk by gunfire off the coast of north Korea on 16 July 1953.  The Applicant was embarked on the ship at that time.

b.No personnel were observed on board the junk.  Tobruk did not investigate the wreckage after the sinking.

c.There is no evidence to suggest that three sampan/junks were encountered and sunk by Tobruk at that, or any other, time. 

d.The Applicant was injured in a serious mine accident in 1983, when his adjacent workmate was killed.  The Applicant suffered severe depressive illness, leading to intense psychiatric treatment.  There is no evidence that medical personnel were informed of the Korean incident in 1953.

e.The Applicant lodged a claim for PTSD on 13 February 2001.  There is no evidence that the Applicant sought psychiatric opinion or treatment in relation to the Korean incident prior to this date.

84.      The matter of Woodward (supra) was in respect of a claim for the acceptance of PTSD as a war-caused disease, resulting form operational service by the Applicant in the Australian Army.  The tribunal in that matter was not satisfied that a reasonable hypothesis had been raised, drawing on Re Slattery and Repatriation Commission (1998) 52 ALD 90, wherein it was stated in respect of experiencing a severe stressor:

“The word “witnessed” suggests that the person was present at the event involving real or present (ie actual) or threatened death.  The word “experienced” suggests that the person observed or encountered such an event and the word “confronted” that he or she was faced with such an event.”

Part of the appeal before the Full Court focussed on the question of whether the tribunal properly interpreted and applied the above terms.  At the outset, the Full Court said that “to limit the definition of the word “experienced” in this way was plainly at odds with its ordinary and natural meaning”.  

85.      In considering the appropriate interpretation of these terms, the Full Court stated:

“The definition of “experiencing a severe stressor” has three elements that relate to a person’s encounter with an event involving death – the person must have “experienced, witnessed or [have been] confronted with an event that involved death…”..   Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present.  As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements.  It follows that for the purposes of the definition a person may be “confronted with” an event that he or she has neither experienced nor witnessed.

In any event, as a matter of ordinary usage to be “confronted” with something means to be brought face to face with it physically or, perhaps more commonly, in the mind.  If the thing being confronted is an event, usage does not require that the person be present at the event she or he “confronts”.  This in no less the case when the confronting event is one involving death or serious injury.”

By way of example, the Court referred to a member of the armed forces taking part in casualty clearance or attending casualties in a sick bay, albeit the injuries occurred at some other location.  In the matter of Woodward, the Court considered the material before the tribunal to have pointed unequivocally to there having been an event involving death, and that Mr Woodward had been “brought face to face with the reality of death on active service”. 

86.      Mr Woodward had also claimed that he experienced, or had been confronted with, threat to him, of death or serious injury. Their Honours referred to Stoddart (supra) in which Mansfield J considered that the SoPs did not distinguish between actual and perceived threat. Mansfield J opined the following at 51:

“It is consistent with those provisions [section 196B of the Act] that the SoPs should be read as meaning that a claimant experiences “a severe stressor” if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience, could reasonably be so perceived”.

This is a view which he considered accords with the common meaning of “threat”, defined in the Macquarie Concise Dictionary as “an indication of probable evil to come; something that gives indication of causing evil or harm”.  Again at 55:

“… the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”

The Full Court considered this reasoning to be “persuasive” and that it should be followed, but further stated that it expressed no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.

87.      Of note in the matter of Woodward before the Full Court, Counsel for the Applicant stated that  “It was accepted that for the purposes of the relevant SoPs, the ‘experience’ had to be based on an ‘event’.  It was also accepted that a figment of the imagination, such as might arise through ‘paranoid ideation’ would not be sufficient to meet this requirement”.  Seemingly, with that concession, a severe stressor based on a “figment of the imagination” was not addressed by the Full Court.  Nor in the circumstances of Mr Woodward’s claim, wherein there was an element of perception rather than imagination, was this necessary. 

88.      The claim before this Tribunal is indeed based on imagination.  The Applicant formed the belief that a woman and children had been on board the sampan/junk, because he had observed families living on board such vessels in Asian ports.  However, there is no evidence before the Tribunal that such circumstances existed on the occasion of Tobruk sinking the vessel off North Korea. The Applicant saw no-one, nor did the ships’ gunnery officer, who had the advantage of the use of the gun direction binoculars.  Further, whilst the Applicant maintained the view that the incident was an atrocity, he was not supported in this regard by Dr Dinnen.  The evidence before the Tribunal was clearly that the sampan/junk was sunk in the context of the requirements of war, and indeed the Applicant accepted that as being appropriate in terms of the orders to the captain of Tobruk. The Applicant also informed Dr O’Brien, that “if it was men, if they were smuggling, that was war…”.

89.      The Tribunal is unable to form an opinion that the hypothesis raised is a reasonable one.  Taking into account the authoritative case law earlier referred to, the hypothesis raised does not contain one or more of the factors determined by the Repatriation Medical Authority as being the minimum that must exist, and be related to the Applicant’s service.  There are many inconsistencies in the evidence put before the Tribunal, such as the initial claim, as also later made to Dr O’Brien, that three junks had been sunk, that women and children in the plural had been killed, but for the purposes of Step 3 under Deledio (supra), the objective and subjective criteria for a severe stressor has not been met.  Accordingly the claim must fail.  That being the case, it is not necessary for the Tribunal to consider the evidence before it in respect of the psychiatric history from 1953, but the mining accident, and the resultant severe depressive conditions and intensive treatment stand out as being significant in the history of the Applicant.

90.      The decision of the Veterans’ Review Board that refused the claim for Post Traumatic Stress Disorder is affirmed. 

I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member  

Signed:         C. Gregson
  Associate

Date/s of Hearing  26 June 2003
Date of Decision       16 September 2003
Counsel for the Applicant              Mr M Vincent
Solicitor for the Applicant               Ms N Archer
Advocate for the Respondent       Mr J Marsh