Donald Ambler and Repatriation Commission
[2013] AATA 303
[2013] AATA 303
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2329
Re
Donald Ambler
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO, Deputy President
Date 15 May 2013 Place Hobart Decision Summary
The Tribunal decides that:
(a)The applicant suffers from Recurrent Major Depressive Disorder and not from Post-traumatic Stress Disorder.
(b)In all other respects the decision under review is affirmed.
........................................................................
Deputy President
Catchwords
Veteran's Affairs - disability pension - applicant rendered defence service in Royal Australian Navy - traumatic incidents during service - claim of defence-caused PTSD - correct diagnosis is Recurrent Major Depressive Disorder - connection raised between disease and service rendered by applicant - relevant Statement of Principles does not uphold connection - disease not defence-caused - except for different diagnosis decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 ss 70 (5), 120(4), 120B(3)
Statement of Principle's Concerning Depressive Disorder No. 28 of 2008
CASES
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Bawden (2012) FCAFC 176
Repatriation Commission v Warren (2007) 95 ALD 606
Repatriation Commission v Cornelius (2002) 69 ALD 250
Repatriation Commission v Wedekind [2000] FCA 649Brew v Repatriation Commission (1999) 56 ALD 403
REASONS FOR DECISION
The Hon R J Groom AO, Deputy President
INTRODUCTION
This is a review of the decision made by the Veterans’ Review Board (“VRB”) on 7 March 2011.
The decision of the VRB affirmed an earlier decision of the Repatriation Commission which had refused Mr Ambler’s claim under the Veterans’ Entitlements Act 1986 (“the Act”) that the Post Traumatic Stress Disorder (“PTSD”) from which it was alleged he suffered was defence-caused.
Mr Ambler served in the Royal Australian Navy from 12 January 1981 to 12 January 2001. During his 20 year career in the navy he achieved several promotions and had attained the rank of Petty Officer prior to the date of his discharge.
The whole period of Mr Ambler’s full-time continuous service is “defence service” within the meaning of that term in s 68 of the Act.
The Repatriation Commission had previously accepted a number of other medical conditions suffered by Mr Ambler as being defence-caused. If it is established that he also suffers PTSD, or some alternative psychiatric condition, he would then be entitled to be paid a pension at a higher rate.
THE LEGISLATION
A person who has rendered defence service is eligible to receive a pension under Part IV of the Act if he or she suffers from an injury or disease which was “defence-caused”. An injury or disease is “defence-caused” if it “arose out of or was attributable” to any defence service. It is sufficient if the injury or disease was “contributed to in a material degree by or aggravated by” any defence service.
Section 70(5) of the Act relevantly provides as follows:
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c) the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease.”
The standard of proof to be applied to the particular case varies according to the nature of the service rendered. For applicants who have rendered “operational service”, service in a “peace-keeping force” or service determined to be “hazardous service” there is a special reverse standard of “beyond reasonable doubt”. However, as is the case here, for those who rendered other “defence service” the standard of proof is “reasonable satisfaction” (see s 120(4) of the Act).
The “reasonable satisfaction” standard of proof has been held to mean the ordinary civil standard of proof or “on the balance of probabilities” (see Repatriation Commission v Smith (1987) 15 FCR 327).
Prior to 1994 many theories had been advanced to link a particular injury or disease to the person’s defence service with little or no supporting medical/scientific evidence. To address that concern the Statement of Principles (“SOP”) Scheme was introduced for claims lodged on or after 1 June 1994. That Scheme requires that any alleged causal link between an injury or disease and the person’s service must be supported by factors set out in the relevant SOP. Those factors are considered to be based on sound medical/scientific evidence as determined by the Repatriation Medical Authority.
Section 120B(3) provides as follows:
“In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12);or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the connection that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
THE ISSUES
The principal issues to be determined by the Tribunal are:
(a)Does Mr Ambler suffer from PTSD?
(b)If not, does he, on the evidence, suffer from any other medical condition?
(c)Is the PTSD or other medical condition defence-caused?
DOES MR AMBLER SUFFER FROM PTSD OR FROM SOME OTHER MEDICAL CONDITION?
The initial step the Tribunal must take in the decision-making process is to decide whether, on the evidence, Mr Ambler is suffering from PTSD or some other medical condition. This issue is to be determined on the balance of probabilities (see Benjamin v Repatriation Commission (2001) 70 ALD 622 and Repatriation Commission v Bawden [2012] FCAFC 176).
Although at the hearing the applicant’s case was essentially based on the contention, as indeed the VRB had found, that he is suffering from PTSD, if the Tribunal finds that some alternative diagnosis arises from the evidence it is permitted to find that the alternative applies. Again, that determination is to be made on the balance of probabilities. (see Benjamin (above) at paragraph 47 and 48).
As was explained by Keifel J in Repatriation Commission v Warren (2007) 95 ALD 606 at paragraph 25:
“The anterior, or threshold, question for the Tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a pre-condition to any entitlement to a pension. There is no provision of the VEA which expressly requires the Tribunal to have regard to the SOP criteria in determining this question. The requirement the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessary have regard to that manual and the criteria provided by it.”
As often occurs in matters of this kind varying clinical diagnoses have been provided by the psychiatrists and psychologists who have treated Mr Ambler or who have examined him and provided reports for medico-legal purposes.
Traumatic Incidents during Mr Ambler’s Service in the Navy
Before discussing the various clinical diagnoses some reference must be made to three particular incidents which Mr Ambler’s counsel submitted were either the cause of or symptomatic of the PTSD claimed to be suffered by the applicant.
It was submitted on behalf of the applicant that the cause of the PTSD was the incident which occurred on 3 August 1987 when two submariners aboard HMAS Otoma perished at sea after being left outside the hull of the submarine when it submerged. This event clearly caused great distress to those on board, including Mr Ambler who was then serving on HMAS Otoma as a Leading Seaman Steward. He says he had a very close friendship with the deceased submariners and in particular with Able Seaman Hugh Mackrow who he has described as a “good mate and a very close friend” (VRB transcript page 13). Mr Ambler had only known the other deceased submariner Seaman Damien Humphrey for “a couple of months”.
For a number of hours following this incident Mr Ambler assisted a fellow submariner, Leading Seaman Pryor, who had suffered an acute anxiety reaction after the loss of the two submariners.
Mr Ambler was obviously deeply upset by the incident. He was given medication soon afterwards to settle his nerves. The following day he was involved in a physical altercation after derogatory comments were made by a patron at a hotel. He was then taken to a naval hospital, HMAS Penguin, by his brother and some friends. He “quietly rested” in bed at the hospital for a period of time “without sedation” and then afterwards took weekend leave to visit his parents in Wagga Wagga. Following that period of leave he was said to be “much more settled” and “balanced in his thoughts” it was stated that he then had no “depressive features”.
There will be further discussion later in these reasons about aspects of this incident when considering the relevant Statement of Principles (“SOP”) and whether it supports any causative link between that incident and the medical condition from which Mr Ambler suffers.
The second incident referred to by Mr Ambler’s counsel, Mr Pitt, occurred in May 1996 when Mr Ambler was again serving on HMAS Otoma. A birthing line had broken free when the submarine was on route to New Zealand. Mr Ambler went to assist in the recovery of the line. In the process he struck his head on a metal flange which secures the aft hatch. He suffered a cut to the forehead and was semiconscious for a period (T documents page 135). Mr Pitt indicated that it is not claimed that this particular incident caused Mr Ambler to suffer PTSD or any other psychiatric condition but is “consistent with the existence of a condition resulting from the 1987” … incident.
Reference was also made to a third incident which occurred in September 1999 when Mr Ambler was serving on HMAS Launceston as coxswain. Two sailors on board the ship went missing and were unaccounted for for a period of time. Although this turned out to merely be a prank by the sailors at the time it caused Mr Ambler significant distress and a resumption of his symptoms because it reminded him of the 1987 Otoma incident.
The Evidence of Mr and Mrs Ambler
In his witness statement (A4) of 19 September 2012 Mr Ambler describes in detail the effect on him of the various traumatic incidents that occurred during his service in the Navy. He spoke in detail in his statement and evidence about his relationship with the two submariners who died in the 1987 Otoma incident. The relationship with the deceased mariners will be discussed in detail later in these reasons.
Mr Ambler described the symptoms from which he suffers as follows:
“… then insomnia, mood swings, anger, severe nightmares which I can recall that I believed I was screaming out when in fact I was not, I have flashbacks of the Otoma incident day and night. I have flashbacks of drowning, I was getting and still do flashbacks of being trapped and on fire, irritable, bouts of overeating, weight gain, crying in my sleep, perspiring in my sleep, perspiring during my sleep, broken sleep when I am able to get it and also waking up early and then not being able to get back to sleep at times such as 2.00am or thereabouts.” (paragraph 119)
Mr Ambler said that the symptoms persist and that “I am still suffering from them today”.
Mrs Ambler also made a written statement (A5) and gave oral evidence. Mrs Ambler is a psychiatric nurse and it is interesting that her witness statement includes the heading “symptoms of PTSD”. She described in the statement various PTSD symptoms she has observed Mr Ambler suffering including details of “nightmares”, “irritability”, “mood swings”, “social phobia” and “stress”.
The Medical Evidence
Three experienced psychiatrists gave oral evidence at the hearing. They were two treating psychiatrists Dr Carter and Dr Jensen and a third psychiatrist, Dr Sale, who was engaged by the respondent to interview Mr Ambler and then to provide a written medico-legal report.
In addition to that oral evidence the Tribunal had the benefit of reading written reports from Doctors Carter, Jensen and Sale as well as from other psychiatrists including Dr Auchincloss, Dr Wallace and Dr Reinhardt and also psychologists Ms Groombridge and Ms Johnston.
It is not the Tribunal’s intention to canvass in detail in these reasons all of the varying medical opinions that have been provided but simply to highlight those portions of the evidence which most influenced it in reaching a conclusion about the medical condition suffered by Mr Ambler.
There can be no doubt that Dr Carter had ample opportunity to observe Mr Ambler and to assess his medical condition. Mr Ambler was referred to him in 2010 for assessment and treatment. Dr Carter said he had attended Mr Ambler 42 times since May 2010 including during a period of hospitalisation at the St Helen’s Hospital in Hobart in January and February 2011.
Dr Carter expresses a consistent view in his oral evidence and written reports that Mr Ambler is suffering PTSD “… which arose from traumatic events encountered as part of his work in the defence force” (the report of 16 October 2011). In that written report Dr Carter refers to four traumatic events which occurred in Mr Ambler’s naval service. Interestingly he includes an alleged incident in late 1983 when Mr Ambler is said to have seen some dead bodies in Indonesian waters. It would appear that incident is no longer relied upon by Mr Ambler as a cause of his medical condition. Dr Carter considers that Mr Ambler presents symptoms which satisfy a number of the DSM-IV criteria for the diagnosis of PTSD. They are detailed in his written report of 16 October 2011. He believes the “possible traumatic sequelae” began soon after the 1987 Otoma incident when contact was made with naval medical staff.
Dr Carter is not surprised that other psychiatrists have diagnosed depression as “… PTSD, depression, anxiety disorder and substance abuse occur frequently either together or individually at different times during the evolution of PTSD …” (report of 18 August 2012).
Dr Jensen’s evidence is particularly interesting. An increased knowledge of certain factors gained over time caused her to change her opinion. Dr Jensen had 29 consultations with Mr Ambler between 19 July 2000 and 1 November 2002. She also interviewed Mr Ambler for an hour on 10 December 2003 to assist her in preparing a detailed written report dated 16 December 2003.
In a letter to the Department of Veterans’ Affairs of 30 August 2000, Dr Jensen said that Mr Ambler is “… now experiencing symptoms consistent with a DSM-IV diagnosis of post-traumatic stress disorder”. However, in a later opinion of 16 December 2003 Dr Jensen states:
“Mr Ambler does not fulfil the criteria for post-traumatic stress disorder. Although he was involved in an incident aboard the HMAS Otoma he has not experienced persistent recall of the incident, in that between July 2002 and September 2003 he was not thinking about the incident. Furthermore, when he does think about the incident it is in terms of analysis rather than re-experiencing it. There is no evidence of persistent avoidance of sequelae, for instance he watches movies about submarine disasters. He is able to enjoy the company of his children and does not anticipant a foreshortened future.”
In that same report Dr Jensen diagnosed the condition of “major depressive illness – recurrent” she expressed the opinion that the condition was permanent. Dr Jensen added:
“I do not believe that Mr Ambler’s military employment aggravated, accelerated or contributed to any arterial degree to his Major Depressive Illness. Review of Mr Ambler’s naval medical records reveals that significant stress also at the time of his first depressive episode was marital difficulties and infant son’s illness. No mention is made of service related stressors.”
In her oral evidence Dr Jensen was asked about the rapport between herself and Mr Ambler. She said:
“I don’t think that we had a particularly good rapport. I think it was good cordial. I think that – I think that there was certain things that he wanted from this interaction, which was fair enough, but I certainly think that he wasn’t very amenable to anything that didn’t fulfil his way of seeing things.” (transcript page 75)
Dr Jensen told the Tribunal that in April 2002 Mr Ambler had said that he was applying for a disability pension “on the basis of PTSD”. But then, she said, in July 2002 he said “I’ve changed my mind I’m going to re-join the navy”. When asked about the PTSD and other medical conditions Dr Jensen said that Mr Ambler told her “well they’re all better”. Later when Mr Ambler was unsuccessful in his bid to return to the Navy Dr Jensen said “… amazingly, he redeveloped all of his post-traumatic stress disorder symptoms (transcript page 76). Dr Jensen also questioned the nature of the recall Mr Ambler said he was experiencing. She said:
“His recall was not about sitting with the person that was distressed or searching for the people. His recall was how procedure should have been different, so it didn’t happen, because it wasn’t right that it happened.” (transcript page 76)
Dr Jensen has maintained her diagnosis of major depression. She believed Mr Ambler had suffered a number of episodes of depression. His first was “… when he was in the service in ‘96” then he gets another episode of depression in 2000 because of problems in the first marriage and “all the stressors around that” (transcript page 81).
Dr Sale interviewed Mr Ambler on two occasions over a total period of approximately one hour and forty minutes. He was firm in his view that Mr Ambler was not suffering from PTSD. He said in his detailed report of 8 February 2012:
“It would follow from the above summary that I have concerns about the reliability about the history provided by the veteran. While there have clearly been some significant mental health problems, e.g. the depressive mental health problems in 1996, and a further difficulties in 2000, symptoms particular of PTSD appeared late, and other experienced psychiatrists who had earlier contact with Mr Ambler make no reference to them.
In my experience with patients suffering from PTSD there is an evolution of symptoms with time. Specifically, hyperarousal, hypervigilance, nightmares and intrusive memories, if they follow a single incident exposure, tend to diminish with time to a point where, in relation with nightmares, they become sporadic, or perhaps subject to occasional exacerbation after re-exposure to similar events. I would regard a situation of nightmares to develop later, and then persist unabated at a high frequency to be very unusual.” (report of 8 February 2012 at page 19)
Dr Sale said later in that report:
“Setting aside the more recent matters, i.e. since 2009, that which I have concerns, there have been clear mental health difficulties in this man’s life. From the information available, he suffered a major depressive episode which was diagnosed in 1996, that had been symptomatic for up to three years before hand. This appears to have resolved. He then experienced further difficulties about four years later. An earlier treating psychiatrist reached the view that Mr Ambler suffered episodes of major depression, and I believe that is a persuasive formulation.
On issues of causation these are more likely to relate to personal matters, both in Mr Ambler’s past and present. His personal background appears to have been somewhat unusual, and this may have left vulnerability. Then, during his adult life, there appears to have been significant difficulties in personal relationship. For example, there was a broken relationship around about the same time as the Otoma incident. There were later marriage difficulties when he presented with symptoms of depression during 1996. There were also problems about four years later, and the marriage eventually ended not long later. Dr Carter’s report suggests that there have been continuing difficulties, e.g. child support.” (pages 18 and 19 of the report)
Dr Sale said that in his opinion Mr Ambler suffered recurrent episodes of major depression. He thought probably around three episodes. He added:
“The first episode was about 1996, but he remained within the Navy for a while longer. He then had further difficulties towards the end of his time with the navy that’s when he saw Dr Jensen, and then there were further difficulties. I think it was about 2003, at a time when he – no longer after he – had been unsuccessful in attempting to re-join the RAN.” (transcript pages 95 and 96)
Dr Sale later said:
“That, to me, suggested more of a depressive disorder which is recurrent, whereas PTSD, if its – if its present – if it persists beyond a year – is a chronic, ongoing condition. It doesn’t come and go.” (transcript page 96)
and he added:
“There might be periods when it’s a bit worst, but it doesn’t actually go away.”
Dr Sale said there may be a vulnerability flowing from Mr Ambler’s personal background. The Tribunal considers it is of importance that Mr Ambler sought medical assistance in May 1987, some months before the Otoma incident, after the breakdown in the relationship with his fiancé. At that stage he felt that “all is lost” and that “he cannot cope” (see the medical officer’s report at page 160 of the T documents). A report from consulting psychiatrist Dr Wallace dated 8 April 1997 refers in particular to marital problems and worries concerning the health of this son. The report stated:
“I reviewed this senior sailor on the 5th of April. At that time he describes his mood as being good, and stated that he felt happy and positive at prospect of a posting to HMAS Cerberus, and an increase of likelihood of promotion in the near future. He stated that the move from Sydney had seemed to unite he and his wife, that they were both happy about it.
This has come on the heels of continuing significant marital difficulties, which they had both been trying to address through marriage guidance counselling with naval social workers. This situation has been further strained by recent worries as to the health of their infant son who had recently been investigated for epilepsy. Fortunately no abnormality was detected.
He appeared cheerful and was voluble. He was quite positive about the future.” (T3 page 28)
In a report dated 28 August 2006 Dr Auchincloss, consultant psychiatrist stated:
“It was quite difficult to illicit specific psychiatric symptoms from Mr Ambler as many of his difficulties seemed to be related more to anger, disaffection and blame, which he apportioned to his ex-wife and to the Navy.”
and further:
“He does report difficulties sleeping, saying he sleeps only three or four hours a night. However, he also says he falls asleep at about 7.30pm and wakes at 1 or 2 am and then stays awake. When he wakes he goes over the episode on HMAS Otoma, worries about what the families of the two young men feel at the moment, and thinks about the terror the two sailors must have experienced. He also questions why the incident happened. He says he recalls the incident every day. However, Mr Ambler does not describe any intrusive thoughts, nightmares, flashbacks, anxiety, hyperarousal or emotional numbing.” (page 4 of the report)
Dr Auchincloss concludes:
“I do not think Mr Ambler fulfils the criteria for an access one psychiatric condition. In particular, he does not have post-traumatic stress disorder or major depressive disorder. He has personality and psycho social issues which affect his approach to life, but these are not related to his service in the navy. In my opinion he does not have a compensable psychiatric illness.”
Dr Reinhardt, a consultant psychiatrist, prepared a report dated 2 July 2009. He expressed the opinion that:
“… Mr Ambler suffers from chronic post-traumatic stress disorder which has resulted from the events as detailed which occurred during his naval service. This had led to severe distress as well as impairment of functioning.”
It is noted that Dr Reinhardt refers to two incidents which the applicant appears not to rely upon at this point and which were not referred to by his counsel as causes of his claim of PTSD. These incidents were the sighting of the bodies in the water in Indonesia and an incident in 1988/9 when apparently a young female sailor tried to cut her wrist.
Contemporaneous written material confirms that Mr Ambler was distressed following the 1987 Otoma incident.
An “SCR1A Report” (A1) refers to the Otoma incident and states “currently experiencing a range of stress-related symptoms. Difficulty concentrating, irritability, loss of appetite, sleeping problems including nightmares.
And further:
“Other issues in his life. Recently broke up with his fiancé. She was unable to cope with the separation. This has happened before and he now distrusts women. Fears that a current new relationship will end the same way so unable to lean on her for support.”
Psychologist L Groombridge said in a report about Mr Ambler dated 29 September 1987:
“He is still experiencing considerable distress concerning the loss of the two submariners on the 3rd of August 1987. In addition he has not worked through his feelings following the break-up of a close personal relationship. He also appears to have developed a phobic reaction to being in submarines.
I recommend that Don receives intense personal counselling on a regular basis to work through his grieving and then, if necessary, to overcome his fear in being in boats. I discussed this with him and he is agreeable to my proposal. I will commence counselling with him on the 30th of September.” (R2 page 10)
A further SCR1A Report of 7 September 1989 reports:
“Still having sleep problems re Otoma accident.” (A2)
The “Psychology-In-Confidence” report of 22 October 1991 said:
“Discussed Otoma incident and recent death of a very close friend in a car accident. No undue sensitivity apparent and indicates he has put the Otoma thing behind him.” (R2 page 19)
Navy psychologist Marylyn Johnston said in a handwritten report of 21 August 1996:
“This man is seriously depressed and needs to be given the opportunity to put some serious effort into resolving the numerous issues both work related and personal that are exacerbating his condition.” (R2 page 21)
Another psychology-in-confidence report of 21 August 1997 states:
“Don posted into Cerberus in April and says he feels revitalised” that he’s made a good turnaround here. He’s currently an instructor at ITF and reports he is finding it more enjoyable and satisfying than subs. He likes seeing “the end product” and his first division passes out next week. Says he’s had good prs. He’s posted here until end of next year.
He claims he’s not had any further problems and attributes a significant proportion of his depression to his previous XO who he said ‘ripped me apart”. Some frustration over his conditions of service now that he’s been handed back to GS.”
It is stated in the last paragraph of the report:
“No overt signs of depression.” (R2 page 25)
It is clear from his reports and evidence that Dr Carter, who is Mr Ambler’s treating psychiatrist, has very real empathy for him.
Dr Carter placed emphasis on the impact of service related incidents rather than the effects of relationship break downs. He criticised Dr Sale’s reliance on the importance of Mr Ambler’s relationship difficulties (see report of 18 August 2012). The Tribunal, however, is satisfied on the evidence that those difficulties were impacting on Mr Ambler’s mental health prior to the 1987 Otoma incident, at the time of that incident and on a number of occasions since. Indeed, only two days after the Otoma incident there is reference to the “recent traumatic break up with fiancé” in an “outpatient health record”. (T documents page 159)
In determining the correct diagnosis of Mr Ambler’s medical condition the Tribunal obviously relies on the judgments of the medical experts who have provided their opinion.
Of all of the diagnoses offered the Tribunal finds Dr Sale to be the most persuasive. The evidence supports his view that Mr Ambler’s illness is episodic. Mr Ambler clearly suffers episodes of depression from time to time but between those episodes is able to recover and function in a reasonably normal way.
It is noted that Dr Sale’s diagnosis is largely supported by Dr Jensen who, as a treating psychiatrist, had, like Dr Carter, special insight over time into Mr Ambler’s varying attitudes and motivation.
Contrary to the conclusion reached by the SSAT the Tribunal finds, on the balance of probabilities, that Mr Ambler has suffered and continues to suffer Recurrent Major Depressive Disorder and not PTSD.
It is necessary for the Tribunal to make a finding as to when the clinical onset of the Recurrent Major Depressive Disorder occurred. The clinical onset occurs when symptoms appeared which enable a medical practitioner to say that the condition was then present (see Repatriation Commission v Cornelius (2002) 69 ALD 250).
According to the medical report (T documents page 34) Mr Ambler had presented in July 1996 describing a three year history of “decreased zest for life”. It states “member is being treated for major depression”. He was admitted to the Balmoral Naval Hospital on 1 August 1996 and discharged on 19 August 1996. At that time Mr Ambler saw a psychiatrist Dr Wallace. This was apparently the first time he had a consultation with a psychiatrist.
It is important to note that both Dr Jensen and Dr Sale have also expressed the opinion that the first episode of major depression occurred at this time in 1996.
The Tribunal finds, therefore, that the clinical onset of the condition of Recurrent Major Depressive Disorder occurred in July 1996.
IS THE APPLICANT’S CONDITION OF RECURRENT MAJOR DEPRESSIVE DISORDER DEFENCE-CAUSED?
Section 120B(3)(a) is satisfied in this case as the material before the Tribunal does “raise” a connection between the disease suffered by the applicant and the service he rendered in the Navy. It is necessary now to consider any relevant SOP.
The necessary causative link between Mr Ambler’s medical condition and his service in the Navy may be established if any relevant SOP upholds the contention that the condition is, on the balance of probabilities, connected with his service in the Navy (see ss 120(4) and 120B(3) of the Act).
The relevant SOP is that concerning depressive disorder (No. 28 of 2008). Clause 3(b) makes it clear, that SOP applies to, among other conditions, the condition “Recurrent Major Depressive Disorder”. The Tribunal finds that SOP No. 28 of 2008 applies to the condition suffered by Mr Ambler.
Although Mr Pitt for the applicant did recognise in his closing address the possibility of a finding that the correct medical condition is major depression rather than PTSD he still maintained that the cause of the medical condition from which the applicant suffers, whether PTSD or Recurrent Major Depressive Disorder was the 1987 Otoma incident.
Clause 6 in SOP No. 28 of 2008 requires that at least one of the factors set out in the clause must exist before it can be said that the relevant medical condition is connected with the circumstances of a person’s service.
In contending at the hearing that the medical condition suffered by Mr Ambler was PTSD reliance was placed by the applicant on only two factors in clause 6 in SOP No. 6 of 2008 (which applies to PTSD). They are as follows:
(d)experiencing the traumatic death of a significant other within the one year before the clinical onset of post-traumatic stress disorder; and
(i)inability to obtain appropriate clinical management for post-traumatic stress disorder.
It is noted that the “significant other” factor also appears in SOP No. 28 of 2008 (see 6(a)(iii) and (iv) and the “inability to obtain appropriate management” factor is included at clause 6(t) of that SOP.
Although there was a change in the diagnosis the applicant is still relying on those two factors to establish his case. It follows, therefore, the necessary causative link between the medical condition and service will not be established unless the Tribunal is satisfied, on the balance of probabilities, that at least one of those two factors exist.
WAS EITHER OF THE TWO SUBMARINERS LOST AT SEA FROM THE OTOMA IN 1987 “A SIGNIFICANT OTHER” FOR THE PURPOSES OF THE RELEVANT SOP?
In SOP No. 28 of 2008 the term “a significant other” is defined as follows:
“‘A significant other’ means a person who has a close family bond or a close personal relationship and is important or influential in one’s life.”
In his written statement Mr Ambler describes his relationship with the two deceased submariners Able Seaman Mackrow (known to him as “Huey”) and Seaman Humphrey (known to Mr Ambler as “Bear”). In the following terms:
“Huey
7.Huey was 24 years of age, the same age as me, at the time of the accident.
8.Huey and I often worked in this area of after ends. Which is after ends torpedo quarters which is not used anymore and is now more sleeping quarters. We could often be stationed there for 1-3 hours together or more.
9.I got on particularly well with Huey. We were both from Adelaide and we would often chat while attending to our tasks. Huey’s task was to fire bathygraph and I was there as a first aid officer. Other things we discussed were the sort of places we used to haunt in Adelaide or we would be haunting if we weren’t on the submarine.
10.We both agreed Adelaide was a great place to grow up so we spoke at length about it. I believe we spoke about what schools we attended or even though I cannot remember what schools he attended. I believe his family came from Salisbury or Elizabeth area and my family came from Blackwood. We chatted about the South Australia Football League as they did not have AFL teams at the time although I cannot remember specific conversations however, we chatted about sports including cricket and soccer.
11.We were both well suited to each other and got on well because we were both introverted and quite shy compared to a lot of the other people on the submarine. When we used to dock the ship in Sydney I remember he had a girlfriend that lived there. I do remember one occasion where we went to a bar for drinks and his girlfriend turned up and we had a few drinks together and spoke although I cannot remember the contents of the conversation. When we were pulling into ports as submariners we would have hotels and motels allocated to us by the navy. On two or three occasions Huey and I shared accommodation. When we pulled into port it was generally two or three days at a time so we would spend a lot of time together during periods in port.
12.I recall being in Wollongong with him and Port Kanimbla and I think the city of Nelson in New Zealand.
13.I knew Huey for approximately eight or nine months before the accident.
14.We would also spend significant times together off the submarine when we were at Platypus which was a submarine base in Sydney. It is no longer there.
15.It was very small area and people knew each other intimately well because it was small quarters where everyone would stay. Initially that is where the bar was located and Huey and would often drink together while at Platypus and talk for hours while consuming alcohol together.
16.While I only knew Huey for eight or nine months before he died we spent significant amounts of time together and we were quite close friends. Given the circumstances in which our friendship developed and the amount of time we spent together, in my view, it would be equivalent knowing someone for a number of years in normal everyday life.
17.I thought Huey as my best friend. He was certainly my best friend on the submarine but also in general.
18.I verily believe that had Huey not died that we would still be best friends today.”
Mr Ambler also added the following general comments:
“29.All members of the submarine who spend any significant amount of time together become very close due to the extremely close proximity that you work with each other. I was particularly close with Huey.
30.I can remember that there were often birthday cakes held in the fridge in the submarine. When it was somebody’s birthday the birthday cake would be pulled out everybody would have some cake and wish the crew member a happy birthday. When we returned to port the person whose birthday it was would also always be buying the first round of drinks.”
In his oral evidence Mr Ambler also added some further comments on his relationship with Able Seaman Mackrow. He said:
“Certainly, I do remember that at a point where I had broken up with a young lady after 18 months together I came back from sea and found that she had left and yes, I found it was distressing to all of a sudden come home and there’s no one there and no reason for it, but at the time Huey and I spent together – on the submarine we had become close friends and managed to discuss it with him because I felt confident and knew that our problems just remained private between us.” (transcript page 13)
Further:
“He gave me the confidence to keep going and keep my mind set on looking toward the deployment and the fact that we were actually planning what we were going to do when we hit Perth or when we hit Singapore etc etc.”
In the VRB transcript (R3) it is recorded that Mr Ambler said that when away on trips he had “bunked together” with Able Seaman Mackrow “a couple of times” and later he said “two or three times”.
In that transcript Mr Ambler said, when speaking of other crew members, that “… we were all close … we were a team … a unit”.
Mr Ambler had told the VRB that (Huey) “… came from Victoria and Bear from Queensland. When asked which towns they came from he said he didn’t know (R3 pages 7 and 8). In oral evidence Mr Ambler explained that at the time of the VRB hearing “I just couldn’t remember exactly the state” he said he was stressed at the time of that hearing. The Tribunal finds it most surprising that Mr
Ambler would tell the VRB that Huey came from Victoria yet in his written statement (A4) he said “we were both from Adelaide” and we discussed “the sort of places we used to haunt in Adelaide…” (paragraph 9).
Mr Ambler had agreed that he had no knowledge about the families of the two submariners. He had indicated to the VRB that they didn’t actually talk about personal or family matters. He then said “… we sort of left that at home” (R3 page 14).
Although there had obviously been work contact between Mr Ambler and the two deceased submariners they did actually have different roles on the submarine. Mr Ambler was a steward and Able Seaman Mackrow and Seaman Humphrey were sonar men.
The evidence is that Mr Ambler attended a memorial service held for the two deceased submariners. He said he attended the service in uniform. It is reasonable to infer from the evidence that there would have been an expectation of attendance by other crew members at the memorial service. It was attended by the Chief of naval staff and other senior officers of the navy.
In a report of the memorial service it was said that the men of HMAS Otoma were “feeling grief, bewilderment, loss, anger, frustration …” (T documents page 167).
The Tribunal considers it be of significance that in the contemporaneous medical records written soon after the August 1987 incident there is an absence of any reference to a close friendship between Mr Ambler and the two deceased submariners.
Ms Groombridge, psychologist, in her report of 29 September 1987, less than two months after the incident, refers simply to the fact that Mr Ambler is “… still experiencing considerable distress concerning the loss of the two submariners on the 3rd of August 1987.”
In an earlier report of 24 September 1987 (R2 page 12) there is again a reference to “… two submariners lost at sea”, but no suggestion of any close relationship with Mr Ambler.
Again, in a report of 1 October 1987 (R2 page 11), presumably prepared by a psychologist, there was emphasis on the break-up of the relationship with Mr Ambler’s fiancé but not, in that particular report, a reference to the Otoma incident and the loss of the close friends.
There can be no doubt that crew members on submarine are part of a very close knit “team” or “unit” as has been described by Mr Ambler. He said “we are stuck in a round cylinder” (R3 page 13). However neither of the deceased submariners had been long term friends of Mr Ambler. He had only known Seaman Humphrey for “2-3 months” and Able Seaman Mackrow for “approximately 8 or 9 months”.
It is noted that in 2010 Mr Ambler’s then advocate sought to argue that all members of the crew on a submarine are “family” and should satisfy the definition of “a significant other”. It is of interest that there was not, at that stage in proceedings, any emphasis on the special quality of the particular relationship between Mr Ambler and the deceased submariners.
In the report dated 28 August 2006 (T4) Dr Auchincloss stated, after interviewing Mr Ambler three days earlier:
“He says the whole crew were close as they lived with each other, but he was not particularly friendly with the seamen who died.”
During cross-examination Mr Ambler agreed that he might have said that. He said “and it takes a lot of, you know, time to remember and things come back sporadic. I know especially in the last five or six years, you know, you do remember how close you were, you do start remembering and you can’t sleep on it, you know, nightmares start coming back even harder and its just – yes, I might have said it then, but now I do – I do remember that we were close at the time; we were becoming very close friends.”
It seems surprising to the Tribunal that in 2006 the applicant would tell Dr Auchincloss that he was not particularly friendly with the seamen who died in Otoma incident but that since then he has remembered that he did have a close relationship with the two deceased submariners.
Mr Ambler’s evidence about the closeness of his relationship with Able Seaman Mackrow does not withstand close scrutiny. As indicated there are a number of inconsistencies with past statements. After considering the totality of the material before it the Tribunal concludes that the applicant’s evidence on this issue lacks reliability.
The relationship between Mr Ambler and the two deceased was as close as one would expect between crew members serving together in the confines of a submarine. They also “bunked together” onshore on occasions and sometimes socialised together. However to satisfy the definition of “a significant other” the relationship has to be more than that. It must be a relationship that has developed to the point where it is genuinely “important” or influential “in one’s life”.
After considering all of the material before it, the Tribunal finds that it is not satisfied to the standard required that either Leading Seaman Mackrow or Seaman Humphrey was “a significant other” to Mr Ambler within the meaning of that term in the relevant SOP.
INABILITY TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT
In his report of 26 August 2012 Dr Carter addressed a question on this issue from the applicant’s solicitors in the following terms:
“On the evidence available to me, it seems reasonable to suggest that Don Ambler did not receive adequate treatment for the traumatic sequelae of the Otoma incident of August 1987 whether the condition be post-traumatic stress disorder or major depressive disorder or both.
There seems to have been a wide spread disregard for possible traumatic sequelae that begin with his contact with naval medical staff in the period following the Otoma incident in 1987 and which has continued throughout his naval service.
Initially, after the original Otoma incident, he was given sedatives and bed rest and discharged from hospital within a few days. The working diagnosis was acute grief reaction.
Following discharge from hospital he was given extensive shore leave and did not recommence submarine duty for some years.
He developed a phobia of submarines and the fear that something dreadful might happen either to him or others if they were on a submarine at the end; this phobia was noted by the naval psychologist, Leslie Groomeridge in September 1987, who recommended personal counselling but there is no evidence that such follow up occurred.
Indeed, Mr Ambler reported to me in 2012 that there had been no official follow up about his role in the Otoma incident despite there being an inquiry into the event he received no therapeutic debriefing about the original incident or other traumatic events until the hospitalisation under my care in 2011.
I understand that Critical Incident Stress Management technics were not common in usage in naval services until about 1989. Nevertheless, the Mitchell Model (1983) which came to be used routinely in the follow up in those likely to develop long term symptoms related to a traumatic event was based on the general principles of recognition of those risks which had been known for many years (proximity, immediacy and expectancy).
Even if there had been no widely recognised CISM practices within naval services in 1987, there was ample time for recognition of this trauma related symptoms following the later Otoma incident in 1996.
The opportunities were there to ask relevant questions about the effect of the 1987 Otoma incident in his personal and professional capacities that were not acted upon.
In today’s treatment of potential trauma suffers there would be a clearer discerning of those most likely to be affected by an incident which hopefully would lead to follow up and more effective treatment.
From his report, it seems that Don Ambler received no official recognition of his role in the 1987 Otoma incident, nor the likely effect on him, nor did he receive adequate treatment for the traumatic sequelae.
Admittedly there was some recognition of his ongoing depression but throughout the course of his assessments and treatments, Don Ambler suffered the unsubstantiated assumption that his distress was contributed to, caused by, personal relationship difficulties, e.g. the 1987 separation from his fiancé which distracted clinical attention from the effect on him of the loss of his shipmates or later when a diagnosis of depression was given instead of PTSD because he was involved ongoing martial difficulties.”
Mr Ambler’s counsel placed most emphasis in his closing address on the “a significant other” issue. He made a relevantly brief reference to an “inability to obtain appropriate clinical management” in his closing address.
Mr Rudge for the respondent submitted:
“My submission will be that the evidence discloses no inability. It in fact discloses extensive consultation whilst in the navy for symptoms; extensive consultation in 1987 and then extensive consultation with Marilyn Joanston, psychologist in 1996 and I think I counted four or five consultations with Marilyn Joanston, and then Mr Ambler was referred to the psychiatrist Dr Wallace, on 1st August 1996 through to the 8th April 1997, he is treated by Dr Wallace. There’s four reports from Dr Wallace. There are two reports from H Martin psychologist of 21st August 1997 and the 25th August 1997. So the record is of extensive consultation in the navy and it is very difficult to find an inability to obtain treatment.” (transcript page 126)
Inability to obtain appropriate clinical management requires that the person was unable to obtain appropriate clinical management for an existing condition during defence service and that fact then materially contributed to the condition or aggravated it (see Repatriation Commission v Wedekind [2000] FCA 649).
The appropriateness of clinical management is not to be judged by contemporary standards of treatment and management but by the medical knowledge existing at the time (see Brew v Repatriation Commission (1999) 56 ALD 403).
Dr Carter appears to base his belief that there was a lack of proper treatment provided to Mr Ambler by comparing the treatment provided following the 1987 Otoma incident with the type of clinical management that would be available today.
He said:
“In today’s treatment of potential trauma suffers, there would be a clearer discerning of those more likely to be affected by an incident which hopefully would lead to follow up and more effective treatment
No doubt there have been substantial improvements in post-trauma treatment over the past 25 years or so.”
On the totality of the medical evidence presented to the Tribunal it has decided that Mr Amber does not suffer from PTSD but instead suffers Recurrent Major Depressive Disorder. The evidence shows that expert medical treatment was readily available to Mr Ambler prior to (see the report at page 160 of the T documents) and following the incident on HMAS Otoma on 3 August 1987. The episodes of major depression commenced in 1996. They were treated by psychologists from July 1996 when the condition was first formerly diagnosed. Mr Amber has, as Mr Rudge contended, been treated since then by numerous expert psychiatrists and psychologists.
Dr Carter appears to acknowledge that Mr Ambler’s depression was given recognition and treatment but was particularly concerned that there had been a “long term accent on the depressive disorder at the expense of the PTSD”. The Tribunal has, of course, determined that the correct diagnosis is Recurrent Major Depressive Disorder and not PTSD.
The Tribunal concludes on the balance of probabilities that there was not present in this case an inability to obtain appropriate clinical management for the episodes of Recurrent Major Depressive Disorder which Mr Ambler has suffered since 1996.
The Tribunal therefore finds that SOP 28 of 2008 does not uphold the contention that the Recurrent Major Depressive Disorder suffered by the applicant is, on the balance of probabilities, connected with his defence service.
CONCLUSION
As the SOP does not uphold the contention that the applicant’s condition of Recurrent Major Depressive Disorder is, on the balance of probabilities, connected with his defence service, the Tribunal, pursuant to s 120B(3) of the Act, is not reasonably satisfied that the condition is defence-caused.
DECISION
The Tribunal decides that :
(a)The applicant suffers from Recurrent Major Depressive Disorder and not from Post-traumatic Stress Disorder.
(b)In all other respects the decision under review is affirmed.
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I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of the Hon. R J Groom AO, Deputy President.
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Administrative Assistant
Dated
Date(s) of hearing 21 and 22 February 2013
Counsel for the Applicant Mr K Pitt QC with
Mr J SaricCounsel for the Respondent Mr K Rudge
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