Egan and Repatriation Commission
[2004] AATA 444
•3 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 444
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/45
VETERANS' APPEALS DIVISION ) Re BRIAN EGAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date3 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review to refuse a claim for pension for post traumatic stress disorder pursuant to the provisions of the Veterans’ Entitlements Act 1986. ..............................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
Veterans Affairs – post traumatic stress disorder- claimed stressors do not satisfy SoP - decision affirmed
Veterans’ Entitlements Act s9
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application made by Brian Egan, the Applicant, to review a decision of the Repatriation Commission, the Respondent, made on 13 August 1999 to refuse the Applicant’s claim under section 13 the Veterans’ Entitlements Act 1986, (the Act) for pension for “depressive disorder” as a war-caused disability, within the meaning of that term in section 9 of the Act.
2. The Applicant was represented by Mr Ben-Avi, advocate and the Respondent was represented by Ms Ford of Counsel.
3. The parties agree that the correct diagnosis for Mr Egan’s condition is post traumatic stress disorder, PTSD.
4. Mr. Egan claims that while serving in the Royal Australian Navy (RAN), he experienced three severe stressors which led to his PTSD. The claimed severe stressors were:
(a)A collision off the coast of Borneo, between the HMAS Duchess, on which he was serving at the time, and a small coastal cargo and passenger vessel;
(b)The distressing experience of seeing severed human heads on a wharf at Tawau ; and
(c)Being on board the Duchess whilst guns from the Duchess were being fired at the coast of Indonesia. He feared that someone from the land might shoot back.
5. The Applicant joined the Royal Australian Navy on 8 March 1963 and served until 1 February 1968 when he was discharged on compassionate grounds, his father had died and his mother was blind with no one to care for her. During the course of his naval service Mr. Egan was a tactical communications officer. He rendered operational service , within the meaning of that term in the Act, during the following periods:
(a)About 6 weeks in the waters off Malaysia, 11 August 1965 to 25 September 1965;
(b)Three days off Vietnam, 28 September 1965 to 30 September 1965.
(c)Two months, in and around Singapore, 26 October 1965 to 24 December 1965; and
(d)Two months off Borneo and Brunei, 4 January 1966 to 2 March 1966.
6. Mr. Egan‘s evidence about the three claimed stressful events was to the following effect:
(a)On 22 January 1966 at approximately 2 am the Duchess, while on patrol off the coast of Borneo, collided with an Indonesian boat, owned by a Chinese trading company, the Mutiara, carrying passengers and goods. Both vessels were proceeding in a darkened state. The radar operators on the Duchess mistook the Mutaria for a floating tree that had been sighted previously. The Duchess manoeuvred sharply twice to avoid the collision but the Mutiara hit the Duchess amidships. The Mutiara was badly damaged by the collision and was in immediate risk of sinking. After three hours makeshift repairs were made and the Duchess was able to tow the Mutiara to Tawau. The 30 passengers and cargo were loaded onto the Duchess. The Applicant stated that he was on the bridge of the Duchess at the time and witnessed the accident. He saw the crew of the Mutiara throwing things into the water. He stated that he felt a combination of danger and fear and that his mind was in turmoil, he did not know if the vessel was loaded with explosives or if the Indonesian were going to lob grenades onto the Duchess.
(b)The second claimed stressful event occurred after the Mutiara incident. The Duchess had towed the Mutiara to Tawau and had anchored in the river at Tawau. Mr. Egan was given the responsibility of delivering a message from the Duchess to an office on the dock. At the end of the wharf Mr. Egan saw a group of people standing around. The group was laughing at two severed heads. This made him feel physically sick and he vomited all over himself. He suffered a panic attack. He cleaned himself up before he returned to the Duchess and never reported the incident.
(c)The third incident occurred on the HMAS Duchess in or about January 1966. The Duchess was in the Cowie, Wallace Bay area of the Malacca Straits. Mr. Egan gave evidence that the guns of the Duchess were fired into the jungle. He said this experience was very stressful because the Duchess was very close to the shoreline and he feared that Indonesian snipers might shoot at the Duchess.
7. Dr Scott, psychiatrist, examined the Applicant on 30 March 1999 and provided a report to the Respondent dated 2 August 1999. The relevant excerpts of the report are as follows:
“Brian described a long history of depressive illness. He said that it first began in 1969 and his last episode other than the current one was between 1985 and 1988. During this period of time he had a number of weeks in the Winston Noble Unit and was being treated by a psychiatrist John in Caloundra. In 1985 this episode of depression was precipitated by a panic attack and for a period of time he was investigated for a physical cause for his symptoms.
Brian said that he now has no friends. In 1964 when the HMAS Voyager sank, he lost some friends in this accident. He said that he had talked these friends into joining the Navy and their parents had blamed him for their deaths. Brian also attributed some of his problems to his service in the Navy. During his 6 years, he served in the Far East including Malaya, Borneo, Indonesia and a number of tours of Vietnam. He said that he did see a number of traumatic incidences, for example, the bodies of Indonesian infiltrators. Most of his work in the Navy involved communication operations. Mr. Egan didn’t describe any specific symptoms of Post Traumatic Stress Disorder.
Mr. Egan meets the definition for depressive disorder for the purpose of this Statement of Principles. I can see no connection between his service in the Navy, including his time overseas, and his depression symptoms. Mr. Egan said that he first developed depression in 1969 and I believe that this was around the period of time he left the Navy, his reason being his father was dying. I believe that he first sought treatment for his psychiatrist condition in 1988. I do not know whether there is any record of him being depressed in 1969. Other possible causes of his depressive illness include his heavy alcohol abuse and characterlogical problems as well as financial and interpersonal difficulties. These don’t appear to be service related. He described no interests or hobbies. His life has centred on his work and this obviously has placed him at risk of developing psychological difficulties especially when his businesses didn’t succeed.”
8. Dr Gibson, psychiatrist, diagnosed the Applicant with PTSD and provided two reports dated 2 September 1999 and 15 June 2000. In both reports Dr Gibson identified the relevant stressors as :
2 September 1999
“He described a long history of problems since his naval service in Indonesia, Malaya, Borneo and Vietnam. His best friend from childhood was killed in the Voyager disaster after he allegedly talked him into joining the navy. He describes:
· ‘Won’t form any friendships because I might lose them’;
· Feelings of guilt, blames himself for his friend’s death;
· Frustration, irritability, mood swings, anger outbursts;
· Difficulty falling and staying asleep, wakes 2-3am and gets up and walks around;
· Poor concentration;
· Loss of interest in reading, no enjoyment in anything, loss of fine dexterity because of tremor;
· Nightmares and memories involving distorted experiences of his naval service eg: drowning (not an actual experience);
· Social withdrawal, sees little future.
He identifies traumatic experiences related to seeing Gurkhas bringing back their trophies of severed heads and lining them up on the wharf in Borneo. He recalls being in skirmishes with Indonesians whom they arrested and took to Singapore where they were allegedly hanged. He says he always felt vulnerable on the bridge and was concerned he would be the target of sniper fire. He says he was also involved in the perimeter defence of the Singapore naval base from Indonesian frogmen with limpet mines. They were also fired upon by anti-aircraft guns from an emplacement in the Malacca Straits which they were sent to destroy. He says he also witnessed a policeman shoot a pick-pocket in full public view in Subic Bay in the Philippines. He says this left him with an impression of how expendable life was. He said he felt continually fearful and vulnerable in his role as communications operator during his Malayan and Vietnam service.
15 June 2000
The abovenamed has asked me to prepare a brief report to assist with his forthcoming appeal to the Veterans’ Review Board. Reference is made to my previous report 2.9.99 to Mr Bernard L Verwayen.
Since that time he has completed this hospital’s PTSD Program 25.10.99 – 8.12.99 as well as the 2 day follow up group in March this year. I have been following his progress on a monthly basis in my outpatient clinic and he was admitted to the Psychiatric Unit of this hospital 26.5.00 under my care and remains an inpatient at the time of preparing this report.
At the time of admission he described increasing symptoms of depression over the previous 6 weeks characterised by loss of interest, no motivation, ‘feeling foggy’ decreased concentration, feelings of worthlessness, shame, a failure and recurring thoughts of suicide. He described feeling he had no future and his symptoms were accompanied by a number of vegetative symptoms in form of decreased appetite and early morning wakening.
He has remained abstinent from alcohol since commencing the PTSD Program 8 months ago.
His increase in depression has been accompanied by an intensification of his feelings of guilt and blaming himself for his friend’s death as well as an increase in the frequency and severity of his nightmares and memories involving distorted experiences of his Naval service.
Overall his condition has shown little progress since my last report. In his current condition, I feel he is incapable of working more 8 hours/week in any position for which he is reasonably qualified by education, training and experience.
I feel his prognosis is guarded and his impairment likely to permanent.”
9. The Tribunal documents contained a copy of a contemporaneous letter written by Mr. Egan to his parents dated 22 January 1966, the night the Duchess collided with the Mutiara. The letter contained the following :
“Dear Mum and Pop,
We are about fifteen miles off Tawau but it will be about three hours before we arrived as we are only doing five knots.
We had a collision about three thirty this morning with an Indo boat. She was about one hundred feet long and we were after her when she turned into us and we smashed her bows to pieces.
So now we have a stack of Indos on board plus their cargo of copra and we have the boat in tow. She nearly sank but with the aid of a stack of 44 gallon drums and some rope she’s just keeping above the water.
We bombarded the coast again the other day. The army spotters reckon it was a near perfect shoot.
Well there ‘ s only forty nine days left exactly seven weeks. Seems to be going pretty fast these days as we are always in the middle of anything that’s going on here.
Nothing much to write about just patrolling all the blasted time. Caught a couple last week. Still hot as hell but have had a bit of heavy rain.”
10. The official RAN records for the period and events under review were researched by two military historians, Associate Professor John McCarthy, and retired Commodore Philip Mulcare. Their research reveals:
§ On 4 January 1966, HMAS DUCHESS sailed from Hong Kong to North Borneo to take over as the Tawau Guard Ship. In this role, DUCHESS was based at Tawau on the east coast of North Borneo, to coordinate the activities of a number of smaller naval vessels on patrol in the area and provide Naval Gunfire Support (NGS) for ground forces if required. The aim of the Borneo patrols was to prevent incursions into Malaysian territorial waters by Indonesian warships, prevent infiltration by armed parties of Indonesians in local trading boats, and to prevent piracy and pillage. Traditional barter trading vessels were intercepted and searched by patrolling ships. DUCHESS remained in Borneo until 3 February, then returned to Singapore and subsequently sailed for Australia on 24 February 1966.
§ Mr Egan joined the RAN on 8 March 1963 and trained as a Tactical Operator. As such, he specialised in visual/voice communications and his usual place of duty in a ship was either on the bridge or nearby on the flag deck, or processing signals in the Main Signal Office (MSO). In the normal course of events, he would have had a good knowledge of what was going on in the ship.
§ At the relevant time, the Commander of the DUCHESS was Captain I M Burnside (now Commodore RAN Rtd). He was responsible for the ship’s “Report of Proceedings”. Those parts of the Report, relevant to this review are:
“22. On Monday 17th January, HMAS DUCHESS berthed on EDDYROCK off TAWAU at 0830 and remained alongside on completion of fuelling for the weekly programme meeting at 1100. At 1340 the ship cast off and proceeded up COWIE BAY to WALLACE BAY and COALMINE REACH. At the end of COALMINE REACH off DORIS point, while the ship was turned at rest, the flag was shown to Indonesian positions on NUNUKAN Island. HMAS DUCHESS then returned to COWIE BAY, proceeded to sea to resume night patrol.
23. Tuesday 18th January, was spent on day patrol duties and exercise: S.C.R. crew training was carried out using a target made from oil drums and a single barrel live mortar firing followed (appendix D refers). On completion surface close range firings were carried out and in the afternoon Seamanship exercises. Night patrol duties were resumed at 1800.
24. At 0830 on Wednesday 19th January, HMAS DUCHESS anchored in WALLACE BAY and during the forenoon carried out Naval gunfire support firings target in the river complex. During this period five Australian C.M.F. officers were embarked to witness the firings and later for passage to TAWAU. HMAS DUCHESS weighed at 1530 and after disembarking personnel off TAWAU proceeded to sea for night patrol.
…
27. During the Middle watch on Saturday 22 January, when investigating a darkened contact a Kumpit struck the starboard side of the ship and damaged its bows. Subsequent flooding through the bows swamped the craft despite the off loading of much of its cargo of copra onto HMAS DUCHESS.
The Kumpit was taken in tow to TAWAU and together with its Indonesian crew and passengers handed over to R.N.O. TAWAU at 1500 on Saturday, 22nd January. HMAS DUCHESS then anchored off TAWAU for a stand off from patrols. Details have been reported separately.
…
30. At 0700 on Wednesday 26th January, HMAS DUCHESS anchored off TAWAU and embarked 1 officer and 4 other ranks of the Army N.G.S.F. spotting team and 1 officer and 9 other ranks of the Royal Marine special boats section together with four assault craft. At 0830 HMAS DUCHESS weighed and proceeded to TIMBU MATA Island in DARVEL BAY arriving off shore at 1630. At 2000 all Army and Marine personnel were landed from the ship and a combined Naval gunfire support and assault exercise was carried out until 2359. On completion the ship carried out night patrol in the DARVEL BAY area.
31. At 0730 on Thursday 27th January, HMAS DUCHESS anchored off SI AMIL Island to land banyan parties during the day and at 1630 weighed and proceeded on night patrol.
32. On Tuesday 28th January, HMAS DUCHESS entered COWIE BAY and berthed port side to on EDDYROCK at 0700 to replenish and to land Army and Royal Marine personnel and equipment. On completion the ship anchored off TAWAU at 0930 for a stand off from patrol. Night patrol was resumed at 1800 on Sunday, 30th January.
33. On completion of night patrol HMAS DUCHESS anchored in WALLACE BAY at 0830 and during the forenoon carried out Naval gunfire support firings at targets in the river complex. At 1530 the ship weighed and proceeded to sea and at the end of the month was on patrol to the east of TAWAU.”
§ A report was requested from Commodore Burnside. He said this:
“Severed heads” in Tawau
I have no recollection of hearing that the British commanded forces in Borneo were offering a bounty for Indonesian heads, nor that a member or members of the ship’s company personnel had seen severed heads in Tawau. Further, I do not recall any security warnings about atrocities of this nature.
If any member of the ship’s company had seen severed heads near the ship, I believe I would have heard about it. With my 40 years naval experience I consider it most unlikely that, in the confines of a destroyer, a sailor would refrain from talking about an experience such as this, particularly after he had consumed a few beers as Mr Egan claims to have done.
A report of an incident such as this would have concerned me as it would have indicated a dangerous element in the town close to the ship. It would have justified a closer liaison with the local administration and possibly the posting of armed guards on the upper deck.
Mr Egan also claims that a Malaysian or Singaporean patrol boat had berthed just near HMAS DUCHESS in Tawau, and it had been raked down the starboard side by machine gun fire. Firing on a patrol boat in the Tawau area would have been significant escalation of military activity by Indonesian forces, would have been widely reported and all ships would have been aware of it. I am sure I would have mentioned it in my Report of Proceedings. However, I have no record or recollection of such an engagement.
Collision with a kumpit
The collision with a kumpit on 22 January 1966 was a minor incident and did not cause any damage or pose any danger to HMAS DUCHESS. It was a different matter for the kumpit, which required a lot of effort to repair damage so that it could be towed back to Tawau. A major and continuing problem was the horde of cockroaches embarked with the kumpit’s cargo of copra; the cargo was returned but the cockroaches defied all attempts to remove them.
Naval Gunfire Support
My Report of Proceedings shows that the ship undertook three NGS firings in January 1966. One was spotted but I do not recall where the target was, except that it would have been in Malaysian territory, as we were not permitted to fire into Indonesia. The other two firings were general harassment firings into the jungle area to the west of Tawau, but again on the Malaysian side of the border. As I recall they were all routine firings from a single turret. There was no threat of return fire on DUCHESS.
§ Commodore Mulcare noted:
“In an early statement about the severed heads, Mr Egan said he remembered that a Malaysian or Singaporean patrol boat had berthed just near HMAS DUCHESS in Tawau, and he recalled it because it had been raked down the starboard side by machine gun fire. This was not a recent occurrence. The patrol Boat was KD Sri SELANGOR, which also arrived in Tawau during January 1966. She had been in a firefight with a sampan in the Singapore Straits in July 1965 when one of her ship’s company was killed and the sampan sunk. The scars of this engagement must have still been evident in January.
§ Reports from other persons who were posted to Tawau, and lived for some time in the area, reveal the following:
§Half the population of the Tawau district were Indonesian nationals. They remained peaceful because they were better off financially there, than they would have been at home.
§Head hunting had never been a tradition in the district around Tawau. There are no native Dyaks in that area, they live in Sarawak. The two areas are a considerable distance apart.
§None of the persons contacted had ever heard of beheadings in the area, nor of “bounties” being placed upon heads.
11. The hypothesis put forward on behalf of Mr Egan which is said to raise a connection between his PTSD and the circumstances of his service is that his PTSD developed as a result of being traumatised by (a) the collision between the Duchess and the Mutiara, (b) the sight of severed heads on the wharf at Tawau, and (c) the feeling of being vulnerable to enemy fire while shelling practice targets and engaging in harassment fire into Malaysian territory.
12. There is in existence a Statement of Principles (SoP) relating to PTSD. It is SoP No 3 of 1999 as amended by SoP no 54 of 1999. The relevant parts of the relevant Statements of Principles are as follows:
PTSD: No 3 of 1999 as amended by No. 54 of 1999
“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;
“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;”
13. The Mutiara collision was a very minor incident. There was no danger to the Duchess nor to anyone on it. On the night of the collision, Mr. Egan wrote a letter to his parents. The letter shows that Mr. Egan was clearly not traumatised by the incident (see para 9 above). Mr. Egan did not mention the incident to the psychiatrist, Dr. Scott, who examined him in March 1999.
14. I find that there is no basis for regarding the Mutiara incident as one which would have caused any of the crew of the Duchess to experience a severe stressor. I also find that Mr. Egan did not regard the incident as stressful at the time. This incident does not satisfy the SoP.
15. The severed heads on the wharf at Tawau were apparently seen by no one associated with the Duchess apart from Mr. Egan. The research by the historians has failed to find anyone who can substantiate Mr. Egan’s claim. In fact the very reverse is the case. Interviewees who had a long and significant association with Tawau said that they had never heard of the practice in the Tawau area. I take the view that Mr. Egan did not see severed human heads on the wharf at Tawau. I take the further view that even if he did, it would have been no more than distressing; not so severely stressful that it would have led to a severe, long running psychiatric illness. This claimed incident does not satisfy the SoP.
16. The gunnery exercises do not even come close to amounting to a severe stressor. Mr. Egan’s position on the ship was such that he well knew that the guns were fired as exercises and always on Malaysian territory. These incidents also do not satisfy the SoP.
17. The SoP for PTSD is not satisfied. There is no reasonable hypothesis which connects Mr. Egan’s PTSD with the circumstances of his relevant service.
18. The decision under review is affirmed.
I certify that the preceding 18 paragraphs are a true copy of the reasons for the decision herein of Deputy President, Don Muller
Signed: .....................................................................................
C. O’Donovan AssociateDate/s of Hearing 28 October 2003
Date of Decision 3 March 2003
Counsel for the Applicant Ms Ford
Solicitor for the Applicant Australian Government Solicitor
Advocate for the Respondent Mr Ben- Arvi
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