Dunne and Repatriation Commission
[2007] AATA 43
•2 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 43
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/137
| VETERANS’ APPEALS DIVISION | ) | ||
| Re | JOHN DUNNE | ||
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date 2 February 2007
Place Brisbane
Decision The Tribunal:
(i) varies the decision under review by amending the diagnosis from anxiety disorder and alcohol intoxication to alcohol dependence;
(ii) affirms that decision, as varied; and
(iii) affirms the decision under review in relation to assessment of the rate of pension payable.
..........[Sgd]........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric condition –. no diagnosis of post traumatic stress disorder - diagnosis of alcohol dependence – clinical onset of alcohol dependence more than two years after alleged stressor - no reasonable hypothesis of relevant relationship to service raised – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 120, 120A
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Constable [2006] FCAFC 102; (2006) 151 FCR 391
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392; (2003) 77 ALD 67; (2003) 38 AAR 176
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484
Youngnickel v Repatriation Commission [2004] FCA 1691
Hardman v Repatriation Commission (2004) 82 ALD 433; (2004) 40 AAR 486; [2004] FCA 1174
REASONS FOR DECISION
| 2 February 2007 | Mr RG Kenny, Member |
Background
John Dunne (the applicant) served with the Royal Australian Navy (the RAN) for 12 years. On 19 August 2004, he lodged with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for dysthymic disorder, which he contended was related to his RAN service. On 13 January 2005, the respondent determined that the claim was answered by diagnoses of anxiety disorder and alcohol intoxication and also that these were unrelated to his service. In an earlier decision, dated 10 September 2004, the respondent determined that the appropriate rate of pension payable to Mr Dunne in relation to incapacity associated with conditions previously accepted as being related to his service was fifty percent (50%) of the general rate. The Veterans’ Review Board (the Board) affirmed both of the respondent’s decisions and Mr Dunne now seeks review of them by the Administrative Appeals Tribunal (the Tribunal).
Prior to the claim on 19 August 2004 which led to these present proceedings, Mr Dunne made an earlier claim for acceptance of adjustment disorder and alcohol abuse as being related to his service. That claim was lodged on 8 August 2001. It was rejected by the respondent on 20 November 2001. That decision was affirmed by the Board in October 2002 and by the Tribunal in August 2004 after a Tribunal hearing in March 2004.
Hearing
At the present hearing, Mr Dunne was represented by Mr B Richards. The respondent was represented by Mr B Williams. The material tendered and taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Issues, Service and Standard of Proof
Mr Dunne was born on 21 December 1942 and was 16 years of age when he enlisted in the RAN in which he served from 3 July 1959 until 2 July 1971. He qualified as a stoker and served on several vessels including HMAS Quiberon from August 1962 until April 1964. He then served on various shore bases until posted, in July 1965, to HMAS Melbourne on which he served until February 1968. Subsequently, he served on HMAS Sydney. He rendered eligible war service in the form of operational service, as provided for in sections 7 and 6C of the Act, respectively. This was with the Far East Strategic Reserve whilst on HMAS Quiberon and HMAS Melbourne. It also included service in Vietnamese waters on HMAS Melbourne and HMAS Sydney. On one of the voyages on the Melbourne in April 1966, the vessel was engaged in aircraft operations which involved Sea Venom aircraft landings. Mr Dunne contends that he was witness to an event that followed the crash-landing of one of the aircraft and that this event was the causal factor in the development of his psychiatric incapacity.
The standard of proof for determining diagnostic matters under the Act is provided for in subsection 120(4) thereof and this requires that such matters be determined to the decision maker’s reasonable satisfaction. This has been held to import the civil standard of proof so that matters must be determined on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
The standard of proof applicable to whether an injury or disease is causally related to operational service is set out in subsection 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under paragraph 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Mr Dunne’s application for review also raises the matter of assessment of the appropriate rate of pension payable to him. However, it was conceded by Mr Richards that the assessment process should be entered into only in the event that a psychiatric condition was found to be war-caused. He requested that the decision on the assessment matter be affirmed if this did not occur.
Submissions
Mr Richards contended that the appropriate diagnoses for Mr Dunne’s psychiatric conditions were post traumatic stress disorder and alcohol dependence. He submitted that the conditions were related to the stressful experience that Mr Dunne endured after the Sea Venom crashed into the sea and he saw the observer in the water, still strapped into his seat, and passing down the side of the Melbourne. The observer’s body was not recovered and Mr Richards submitted that this had particular significance to Mr Dunne because the observer was a friend with whom he had served on the Quiberon.
Mr Williams submitted that Mr Dunne does not suffer from post traumatic stress disorder or alcohol dependence and that the appropriate diagnosis was dysthymic disorder. Further, he submitted that any psychiatric condition from which Mr Dunne suffered was not causally related to his service.
The Applicant’s Evidence
Mr Dunne described the Sea Venom incident. He was standing with a group of sailors in a boat space behind his mess on No. 3 deck of the Melbourne. There were two decks above him including the flight deck. The boat space was on the port side and towards the stern of the vessel. It provided a view of the ocean. An aircraft landing exercise was taking place and he estimated that the vessel was travelling at 18 to 20 knots. He heard a loud bang from towards the bow of the vessel and realized that one of the aircraft had failed to stop on the flight deck and had crashed into the sea. He did not see the incident but soon noted debris in the ocean passing down the side of the ship. Amongst that debris, he saw the body of the man whom he later learned to be the observer from the aircraft. The body was in an aircraft seat and not recognizable because it was fully dressed and helmeted. He observed the body passing quickly down the side of the vessel where, after about 30 seconds, it disappeared from his view. When asked in evidence how he felt when he witnessed the body in the water, he responded by saying that “nobody likes to see that”.
A helicopter from the Melbourne effected the rescue of the aircraft pilot who had been able to activate the ejection mechanism and come down in the sea. The observer’s body was not recovered. Subsequently, the identity of the observer was revealed to the ship's crew. Mr Dunne then realized that the observer was his friend, Lt E Kennell. He first met Mr Kennell when they were serving on HMAS Quiberon. Mr Kennell was an officer whom he described as being "approachable” and with whom he was "on talking terms". He explained that this was not unusual in the RAN especially amongst the crew of smaller vessels such as the Quiberon.
After completing his posting on the Quiberon in April 1964, Mr Dunne had no dealings with Mr Kennell until he was posted to the Melbourne in July 1965. He then learned that Mr Kennell was a serving officer on that vessel and that his role had changed to that of being a member of the air-crew. Mr Dunne worked in the engine room or boiler room of the Melbourne and had no contact with members of the air-crew except for occasions when chance meetings occurred such as when negotiating a passageway. He said that, from time to time, he saw Mr Kennell in that way and conversed with him on those occasions. Mr Dunne said that, when he learned that Mr Kennell had been killed in the air crash, he was devastated by the news.
At the time of the incident involving the Sea Venom, Mr Dunne was not on duty. However, he subsequently completed his normal duties but recalled having difficulty sleeping on that first night because of memories of what he had seen. He also said that, from then on, he increased his alcohol consumption levels when he was able to do so. He said that, prior to the incident, he would consume his normal daily issue whilst at sea and, when ashore, he consumed alcohol at times. He said that, after the incident, he would seek additional alcohol from other sailors whilst at sea and increased his level of consumption when he was on shore leave.
Mr Dunne completed an alcohol questionnaire on 20 August 2001. There, he wrote that he commenced to consume alcohol on a regular basis in 1959/1960 on two to three occasions a week and did so because of peer pressure. He also wrote that he increased his alcohol intake in September 1962 to daily consumption. In his evidence, he said that his heavy consumption of alcohol really began after the Sea Venom incident.
Medical Evidence
Evidence was given in this matter by psychiatrist, Dr Alan Freed, who has treated Mr Dunne since October 2001. He provided reports including those dated 23 October 2001, 21 October 2002, 29 March 2003, 31 October 2003, 19 November 2004, 12 June 2006 and 22 July 2006. Evidence was also given by psychiatrist, Dr William Kingswell, who saw Mr Dunne on one occasion prior to preparing his report on 14 August 2003.
Dr Freed
In the first of his reports, Dr Freed diagnosed Mr Dunne as having alcohol abuse and chronic adjustment disorder with anxious mood. He described Mr Dunne’s alcohol history in the following terms:
He first started to drink and smoke when he joined the Navy. He smoked heavily. He drank whenever he could drink. On the Sydney, when issued with drinks, he would seek out those who didn't drink and he would have their drink. When ashore while serving all the three ships, he would fight due to being drunk.
Once after being ashore, he lost his memory and when he woke up he found he was back aboard the ship.
In that report, Dr Freed referred to Mr Dunne’s witnessing of Mr Kennell’s body in the water and noted that this was “not a frequent thought”. He also described other apparent stressors such as hearing depth charges while he was in the engine room. Having diagnosed alcohol abuse and chronic adjustment disorder with anxious mood, Dr Freed identified the trigger for this in the following way:
Mr Dunne was repeatedly anxious in the engine room. He has never ceased being anxious. The stressors were the continuous fear of death whilst in the closed space of the boiler room. He feared death especially when he heard the depth charges explode. The boiler room is often the site of emergencies relating to the safety of the ships engines.
On shore leave he simply drank to excess to self medicate the anxiety which overwhelmed him. This disorder is the primary disorder.
In his report of 21 October 2002, Dr Freed again referred to Mr Dunne as having chronic adjustment disorder which, he said, developed while still in the engine room of the Melbourne. In the report of 29 March 2003, he diagnosed anxiety and alcohol abuse and attributed these to the incident involving Mr Kennell. He also denied the presence of post traumatic stress disorder at that time.
In the report of 31 October 2003, Dr Freed diagnosed alcohol abuse and alcohol-related anxiety and depression. He again referred to the incident with Mr Kennell and noted that he had regular intrusive recall of his death. In that report, he again denied the presence of post traumatic stress disorder and confirmed that Mr Dunne suffered from alcohol abuse rather than alcohol dependence.
Before the preparation of his report in November 2004, Dr Freed spoke with Mr Dunne and his wife. He said that this gave him greater insight into the difficulties that they had experienced during their marriage since 1970 due, in particular, to excessive alcohol consumption by Mr Dunne. Mrs Dunne knew the applicant before the incident in 1966 and believed that he presented differently on returning from that voyage. She considered that he became socially quieter, drank more heavily, became withdrawn and, at times, was verbally abusive. In that report, Dr Freed diagnosed alcohol dependence. He considered that Mr Dunne did not suffer from dysthymic disorder and believed that the diagnosis of that condition was inappropriate because the Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM IV) rejects the coexistence of that condition with alcohol abuse or dependence. In that report, he referred to a statement by Mr Dunne that he was “horrified” on seeing the body in the water and was “very distressed” on learning its identity as a “friendly man” with whom he often spoke when they met.
In his 2006 reports and in his evidence, Dr Freed expressed the opinion that Mr Dunne suffers from post-traumatic stress disorder and alcohol dependence due to the incident with Mr Kennell and he again referred to the reactions by Mr Dunne as described in his 2004 report. He conceded that he had changed diagnoses over the years and explained that this was because, after successive consultations with Mr Dunne, he had gained more insight into the full array of symptoms which he had displayed. He described the symptoms of post traumatic stress disorder as being mild but, nevertheless, sufficient to justify the diagnosis. He also considered that the condition had developed in him in recent times and was not able to be diagnosed at the time of seeing him before 2006.
In cross-examination, Dr Freed agreed that, because Mr Dunne was not aware of the identity of the observer when he saw the body in the water, this would lessen the extent of the stress at that time. However, he also said that, once he became aware of who it was, Mr Dunne may have suffered a “double whammy” with the one aspect having built on the other, although he agreed that he had not discussed this with Mr Dunne.
Dr Freed noted the use of alcohol prior to the incident with the Sea Venom but was of the opinion that his consumption increased after that event. In his report of 29 March 2003, he described the increase as taking place over a period of time in 1970 and 1971 and identified excessive drinking which began in the 1970s.
Dr Kingswell
Dr Kingswell considered that Mr Dunne suffered from dysthymic disorder and alcohol dependence. He referred to DSM IV which lists the diagnostic criteria for psychiatric disorders and accepted that it provides that the symptoms of a depressive condition should not be due to various factors including alcohol. However, he said that DSM IV did not preclude the making of the two diagnoses as distinct conditions and identified some symptoms, apart from those associated with alcohol consumption, demonstrated by Mr Dunne. Nevertheless, he conceded that, for a diagnosis of dysthymic disorder to be properly made, there would be a need for a reassessment of Mr Dunne after a period of sobriety.
Dr Kingswell referred to the Sea Venom incident and noted that Mr Dunne had been able to recall only limited aspects of it. He also noted that the whole incident was over very quickly and said that the description given to him was not one which would be associated with intense fear, helplessness or horror. He understood from what Mr Dunne told him that depressive symptoms began in 1987 or 1988 and he referred to disappointment in the workplace at that time as being relevant to its onset. Dr Kingswell also expressed that opinion in his evidence at the Tribunal hearing in 2004. Dr Kingswell said that he was told by Mr Dunne that he began consuming alcohol when he was 17 years old and that his problem drinking began while he was serving on the Melbourne.
Other evidence
RAN records confirm that the incident involving the Sea Venom occurred on 28 April 1966 due to the failure of an arrestor wire on HMAS Melbourne whilst exercising in the Philippine Sea. The exercise was described as being a "night exercise" but the incident was recorded as having occurred at about 3pm. The records reveal that the pilot was able to eject from the aircraft moments before impact with the water and was rescued by helicopter. They also reveal that the body of the observer was sighted by the helicopter crew and that it sank before it could be recovered.
Diagnosis
Post traumatic stress disorder
In his report of 12 June 2006, Dr Freed diagnosed post traumatic stress disorder. For that condition, the relevant RMA Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. It lists six criteria (paragraphs 2(b)A to F), all of which must be met before a diagnosis of post traumatic stress disorder can be made. Paragraph 2(b)A reads:
(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;
Dr Freed’s opinion is that the incident involving Mr Kennel and the reaction by Mr Dunne at the time and when he learned the identity of the observer meet subparagraphs 2(b)A(i) and (ii).
Since 2001, Dr Freed has provided a range of diagnoses and associated causes. Initially, these were alcohol abuse and chronic adjustment disorder with anxious mood related to activities in the engine or boiler room; in 2002, chronic adjustment disorder related to activities in the engine or boiler room; in 2003, alcohol abuse and alcohol related anxiety/depression related to the Sea Venom incident; in 2004, alcohol dependence related to the Sea Venom incident; and, in 2006, post traumatic stress disorder and alcohol dependence related to the Sea Venom incident. That incident was referred to in Dr Freed’s first report of 23 October 2001. Despite that, he did not attribute Mr Dunne’s psychiatric conditions to that incident but, rather, to levels of anxiety experienced by Mr Dunne in the engine room and boiler room. Dr Freed has not been consistent with the diagnoses he has made in Mr Dunne’s case and explained that he was able to make the diagnosis of post traumatic stress disorder in 2006 after learning more about Mr Dunne’s post service life from him and from his wife. While that may explain the varied presentation of symptoms in those years, it doesn’t change the nature of, or Mr Dunne’s response to, the incident involving Mr Kennell and which Dr Freed was aware of from the outset of his dealings with Mr Dunne.
In his first pension claim in August 2001, Mr Dunne made no specific reference to the Sea Venom incident as a precipitating event for the development of his psychiatric problems. Dr Greenbury, who was his treating doctor at the time of the first claim, completed a report on 24 August 2001 in which he described Mr Dunne’s psychiatric condition as having been first noticed in "1971" and said it was due to "overall effect of service” and “not so much a specific event". Nevertheless, he did refer to the incident involving Mr Kennell as the stressor which precipitated Mr Dunne’s alcohol-related problems.
When Dr Kingswell saw Mr Dunne in 2003, he did not consider post traumatic stress disorder to be an appropriate diagnosis and, as noted above, he did not consider that the incident was sufficient to satisfy paragraph 2(b)A. Mr Dunne has given various descriptions of his reaction at the time of the incident but, in his evidence-in-chief, he merely described it as a situation which “no one likes to see”. Having seen and heard Mr Dunne give evidence, I am reasonably satisfied that his description of his reaction at the time of the incident was not one which manifested a response of intense fear, helplessness, or horror.
Mr Dunne’s friendship with Mr Kennell was significant to Dr Freed’s opinion concerning the diagnostic criteria for post traumatic stress disorder particularly in relation to his learning of the identity of the observer. In his report of 23 October 2001, Dr Freed’s only reference to the connection between Mr Dunne and Mr Kennell was that Mr Dunne "knew Lt Kennell from the HMAS Quiberon”. At the Board hearing on 22 October 2002, Mr Dunne described him as a man with whom he had previously served and as a "shipmate”. At the Tribunal hearing in 2004, he described him as "one of the officers that you could talk to”. He said that “he was one of these people that sort of didn't hold that class distinction between us and himself”; that they were "all together”; and that they “had a job to do as a team". On the evidence before it, the Tribunal, on that occasion, found that Mr Dunne had no strong connection with Mr Kennell. The Board, on 22 October 2002, described the event involving the sighting of the observer’s body and it was noted that Mr Dunne knew Mr Kennell but, in its reasons, the Board stated that there had been no suggestion in the evidence that they were friends.
Mr Dunne and Mr Kennell served together on Quiberon but in distinctly different capacities as is usual as between an officer and seaman. There was no contact between them after Mr Kennell left that vessel until they met on the Melbourne where, again, they served in very different capacities and locations on that vessel. Their meetings were not sought out by either of them but, rather, comprised chance contacts when passing each other from time to time in passageways on the vessel. I am reasonably satisfied that there was not a “friendship”, in the usual sense of that word, between Mr Dunne and Mr Kennell. While a reaction of feeling devastated may well accompany a realisation that the deceased observer was a friend, I am reasonably satisfied that is not the case where the person was an acquaintance of the kind described by Mr Dunne.
While Mr Dunne was confronted with an event of the kind required by subparagraph 2(b)A(i) in that he witnessed a casualty, I am reasonably satisfied that the response by Mr Dunne does not meet the requirements of subparagraph 2(b)A(ii) either at the time of the event or on learning the identity of the observer.
In his report of 22 July 2006, Dr Freed addressed each of the other five diagnostic criteria for post traumatic stress disorder listed in the Statement of Principles and expressed the opinion that they were all satisfied. These include paragraph 2(b)B which reads:
(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;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
I have concerns about the extent to which the event has been persistently re-experienced by Mr Dunne. In his report of October 2003, Dr Freed noted that he had regular intrusive recall of Mr Kennell’s death. In his report of 22 July 2006, he wrote that Mr Dunne was upset at learning of the death of Mr Kennell and wrote that “not a day went past without a painful intrusive thought”. Yet, in his initial report, he recorded that the incident involving Mr Kennell was not a frequent thought.
I am reasonably satisfied, on all of the evidence, that the diagnostic criteria for post traumatic stress disorder, as set out in the Statement of Principles, are not met. In particular, this is because the evidence does not satisfy the requirements of paragraph 2(b)A in the Statement of Principles.
Alcohol dependence
Dr Freed initially diagnosed alcohol abuse. However, in his more recent reports, he has diagnosed alcohol dependence. That is also the opinion of Dr Kingswell. I am reasonably satisfied that alcohol dependence is an appropriate diagnosis and that this condition is to be considered in response to Mr Dunne’s claim.
Dysthymic disorder
Both Dr Freed and Dr Kingswell referred to the caution expressed in DSM IV concerning the making of a diagnosis of dysthymic disorder in conjunction with alcohol abuse or dependence. Dr Kingswell made both diagnoses but conceded that there would be a need for a reassessment of Mr Dunne after a period of sobriety for this to be done. He has not seen Mr Dunne since then and there is no suggestion in the evidence that any such reassessment has been undertaken. Dr Freed has been treating Mr Dunne for some five years and I accept his evidence that, on the basis of his observations over time and in the presence of alcohol dependence, dysthymic disorder should not be diagnosed in Mr Dunne.
Statements of Principles
The Statement of Principles for alcohol dependence includes relevant causal factors and associated definitions. They read:
Instrument No. 76 of 1998 - alcohol abuse and dependence
5(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
5(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ 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 observation of casualty clearance, atrocities or abusive violence;
The term, “experiencing a severe stressor”, is also listed as a causal factor and defined in the Statement of Principles for post traumatic stress disorder. That definition, which is noted for the purposes of comparing it with the definition applicable to alcohol dependence, reads:
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ 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 observation of casualty clearance, atrocities or abusive violence.
Principles of Causation
The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. The event described above concerning Mr Kennell constitutes an hypothesis of a relationship between his operational service and his alcohol dependence. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA and this has been done above.
The third Deledio step does not involve fact finding but requires a consideration of each advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by a relevant factor and associated definition in the Statement of Principles. Again, these are set out above. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps. If it is not reasonable, the claimed condition will not be war-caused under the Act.
Reasonableness of Hypotheses
The definitions of the term “experiencing a severe stressor” in the two Statements of Principles noted above are not identical. For post traumatic stress disorder, it does not include the additional element that the event must be one which might evoke intense fear, helplessness or horror. As noted above, the diagnostic criteria for post traumatic stress disorder, in paragraph 2(b)A of the Statement of Principles, includes the requirement that the person’s response must involve intense fear, helplessness, or horror and I have found that this was not the response of Mr Dunne. However, for alcohol dependence, it is sufficient for the purposes of the definition of “experiencing a severe stressor” that the event was one which might elicit the response of intense fear, helplessness, or horror: see Repatriation Commission v Constable [2006] FCAFC 102. Despite the objective nature of that enquiry, the Full Federal Court in that case also said that the analysis is not entirely objective and that a subjective component is also included: at paragraph [38] and see Woodward v Repatriation Commission (2003) 75 ALD 420 at 445 and Repatriation Commission v Stoddart (2003) 38 AAR 176 at 183. In Woodward, the Full Federal Court said:
“[T]he definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation”.
In Repatriation Commission v Constable, the Court described the definition in the context of alcohol dependence as ambiguous. It referred to the words in paragraphs (i), (ii) and (iii) viz (i) threat of serious injury or death; (ii) engagement with the enemy; and (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence. The Court expressed the opinion that, if a person “experienced, witnessed or was confronted with” one of the events nominated, this would meet the requirements of “experiencing a severe stressor”. As found above, the incident involving Mr Kennell does not meet criterion 2(b)A in the definition of post traumatic stress disorder in the Statement of Principles. However, the material points to Mr Dunne being confronted by a situation in which he witnessed a casualty in the form of Mr Kennell’s body in the ocean as it passed along the hull of the Melbourne, an event which has the potential to elicit in a person a response of intense fear, helplessness, or horror. This is consistent with the requirements of “experiencing a severe stressor” in the Statement of Principles for alcohol dependence.
The factors in the Statement of Principles for alcohol dependence also include a time-frame requirement. For factors (b) and (d), the experiencing of the severe stressor must occur within the two years immediately before the clinical onset or before the clinical worsening, respectively, of alcohol dependence.
The term “clinical onset”, as used in factor (b) has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750. Also, all of the symptoms of the disease need to be shown within the two year period: see Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691. The consideration of clinical onset is not confined to the matters favourable to the applicant: see Hardman v Repatriation Commission[2004] FCA 1174.
At the hearing, Mr Dunne’s evidence was that his heavy drinking commenced after the Sea Venom incident. He said that he did not consume much alcohol before that time. Reference is made above to the record taken by Dr Freed concerning his alcohol consumption ashore "while serving all the three ships” when he “would fight due to being drunk”. At the hearing, it was suggested by Mr Richards that the reference to “three ships” did not necessarily include the three vessels on which Mr Dunne served because the various shore bases on which he served were also known as "ships". I accept that the RAN identifies shore bases in that way. However, in his evidence to the Board on 22 October 2002, Mr Dunne agreed that the "three ships" was a reference to the Quiberon, Melbourne and Sydney and he agreed that the episodes of drunkenness and fighting had occurred on each of those vessels. Mr Dunne confirmed this in his sworn evidence to the Tribunal at the hearing in 2004. His alcohol questionnaire, dated 20 August 2001, describes use on a regular basis in 1959/1960 and an increase in his alcohol intake in September 1962. This points to a significant use of alcohol before the incident with the Sea Venom and is consistent with his statement to Dr Kingswell that he commenced to consume alcohol at age 17 years. Nevertheless, whilst Mr Dunne was a consumer of alcohol prior to the Sea Venom incident, there is no diagnosis of alcohol abuse or dependence relating to that period of service. In the absence of material which points to such a diagnosis at that time, there can be no clinical worsening of any such condition because of the Sea Venom incident.
The first diagnosis of alcohol dependence was made in 2004 by Dr Freed who had denied its presence in his earlier reports although he diagnosed alcohol abuse in 2001. As to the onset of the alcohol problems, Dr Freed, in his report of 29 March 2003, wrote that Mr Dunne used alcohol to excess “from 1970” and said that “his excessive drinking began around the 1970s”. While Mr Dunne’s own evidence and that of his wife point to an increase in consumption levels after the Sea Venom incident, there is no medical evidence which points to a diagnosis of alcohol dependence or, indeed, abuse before 1970. The Sea Venom incident occurred in April 1966 which is more than two years before Dr Freed’s estimates of clinical onset. This means that the material before me is not consistent with the requirements of the Statement of Principles concerning clinical onset of alcohol dependence.
The material before the Tribunal concerning the incident does not fit the template of factors 5(b) or 5(d) of the Statement of Principles for alcohol dependence. This means that the hypothesis in relation to that incident is not reasonable and that alcohol dependence is not war-caused. It is not necessary to consider the fourth of the Deledio steps.
Decision
The Tribunal:
varies the decision under review by amending the diagnosis from anxiety disorder and alcohol intoxication to alcohol dependence;
affirms that decision, as varied; and
affirms the decision under review in relation to assessment of the rate of pension payable.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .Fiona Kamst
Legal Research Officer
Date/s of Hearing 4 December 2006; 9 January 2007
Date of Decision 2 February 2007
Applicant’ Representative Mr B Richards
Respondent’s Representative Mr B Williams
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