Farmer and Repatriation Commission
[2005] AATA 605
•27 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 605
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/10
VETERANS' APPEALS DIVISION ) Re KEVIN JOHN FARMER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date27 June 2005
PlaceAdelaide
Decision
The Tribunal affirms the decision under review.
(Signed)
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – generalised anxiety disorder – condition caused by operational service or defence service – severe psychosocial stressors – reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act1986 ss 6, 9, 13, 70, 120, 120A, 120B, 196A. 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
White v Repatriation Commission [2004] FCA 633Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 2 of 2000
REASONS FOR DECISION
27 June 2005 Senior Member L Hastwell 1. Kevin John Farmer (the applicant) was born on 24 July 1945, and he served in the Royal Australian Navy (the Navy) from 30 January 1962 to 24 July 1982. He was engaged in operational service as defined in the Veterans’ Entitlements Act 1986 (the Act) with the Navy aboard HMAS Sydney (the Sydney) in Vietnam from:
14 September 1965 to 20 October 1965
and aboard HMAS Vendetta (the Vendetta) in Singapore/Malaysia/Borneo from:
22 December 1965 to 5 January 1966
15 January 1966 to 2 March 1966
2. The applicant also rendered eligible defence service as defined in the Act from 7 December 1972 to 24 July 1982. He served in particular on HMAS Brisbane (the Brisbane) from 18 December 1971 to 10 June 1974.
3. By application dated 16 May 2001 [T5] the applicant lodged a claim for a pension in respect of various conditions related to his service. The respondent (the Commission) recorded diagnoses of anxiety disorder, cholelithiasis, lumbosacral spondylitis, cervical spondylitis, and localized osteoarthritis of the right knee in response to his claim, but subsequently rejected the first four of these conditions.
4. The applicant sought a review of that decision by the Veterans’ Review Board (the VRB). At the VRB hearing on 4 November 2003, the applicant pursued only a review with respect to the condition of anxiety disorder. His application with respect to the other conditions was withdrawn. The VRB confirmed the rejection of his claim with respect to anxiety disorder, and affirmed the decision under review. The applicant has applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB.
issue before the tribunal
5. The issue before the Tribunal is whether the condition of anxiety disorder, from which the applicant suffers, is either war-caused or defence-caused for the purposes of the Act.
6. In respect of operational service, two incidents are claimed, and the Tribunal needs to consider whether the applicant experienced a severe psychosocial stressor at any time during his period of operational service, and if so, whether he experienced such a stressor within the two years immediately before the clinical onset of his anxiety disorder.
7. In respect of the stressful incident that it is alleged occurred during eligible defence service, the Tribunal needs to consider whether he experienced a severe psychosocial stressor at any time during, and as a result of, his period of eligible defence service, and if so, whether he experienced the stressor within the one year immediately before the clinical onset or aggravation of his anxiety disorder.
legislation
8. The relevant legislation to consider for the purposes of incidents during operational service is contained in ss 120(1), 120(3) and 120A of the Act. The Statement of Principles (SoP) that the Tribunal must have regard to in this instance when considering operational service is Instrument No 1 of 2000 (No 1 of 2000), and in particular factors 5(a)(ii) and 5(a)(v) of that SoP.
9. The relevant legislation to consider for the purposes of the incident during eligible defence service are ss 70 and 120(4), as affected by s 120B of the Act. The relevant SoP for defence service is Instrument No 2 of 2000 (No 2 of 2000), and in particular factor 5(a)(iv).
10. The Commission accepts the diagnosis of the applicant’s condition. If successful, the applicant’s date of effect would be 18 February 2001.
background
11. The applicant asserts that he experienced stressful incidents during his period of operational service, and also during his period of defence service, and that as a result of these incidents he suffers from anxiety disorder.
12. In the course of the hearing, counsel for the applicant amended the applicant’s position, and one of the incidents about which the applicant had given evidence was no longer sought to be relied on by the applicant. The Tribunal was left to consider three incidents alleged by the applicant, two of which occurred during operational service and one of which occurred during defence service, in determining whether the applicant’s anxiety disorder was either war-caused or defence-caused.
13. The applicant’s counsel was Mr Jolly. The respondent was represented by Mr Doube. Each party tendered exhibits, and they will be referred to where relevant. The applicant gave evidence, and his statement marked Exhibit A3 was received into evidence. A witness statement of Graeme Gibson Rogers, dated 2 August 2004 and marked Exhibit A5, was also received into evidence on the applicant’s behalf. Dr Ewer was called to give evidence on behalf of the applicant. The documents filed pursuant to s 37 of the Administrative Appeal Tribunal Act 1975 were received into evidence.
the evidence before the tribunal
the applicant’s evidence
the boiler room incident
14. The applicant had served as a midshipman on the Sydney for 3½ years at the time of his first trip to Vietnam in 1965, when the first of the three alleged incidents occurred. The applicant was a junior officer in training, and was stationed in the boiler room at the time.
15. The Sydney was being escorted on its way to Vietnamese waters by HMAS Duchess (the Duchess) and the Vendetta. The first incident occurred after the ship had left Manus Island and was en route to Subic Bay. The applicant was in the boiler room, and the bridge called down to advise that the escort vessels had reported the possible detection of a submarine (the Boiler Room incident). The boiler room was told to stand by to punch more sprays into the boiler to increase speed. The applicant felt the ship change course. This was his first involvement with a threat while on that trip. He acknowledged he had been trained as to what to do, and he was aware that the role of the escorts was to deal with possible submarine action while the main vessel exited the area. He described the boiler room as being midship, and below the waterline. Four other Naval personnel were present, but no commissioned officers. He had experienced being in a boiler room previously when there had been the need to put on or take off power, so he was familiar with the procedures. He described this procedure as a normal routine part of duties.
16. The applicant said that he was aware that President Sukarno had said that he would support his allies in Vietnam, and that Indonesia had some state of the art submarines. He described looking at the bulkheads at the time, and contemplating the cold water that would come through if a torpedo were to strike. He mentioned his knowledge of what had happened to those trapped in the HMAS Voyager boiler room. No one survived.
17. The applicant described feeling “concerned”, but “not scared” at this point in time. He said that shortly after the call from the bridge he was required to crawl along the shafts to take the temperatures of the plumber blocks. Checking the shaft tunnel was a regular part of boiler room duties, but he did describe feeling dependent on the bridge, isolated and aware of the lack of escape routes at that particular time.
18. At the time of the first incident the applicant was an officer under training He said that he was expected to show leadership at all times, and could not show fear.
19. The applicant acknowledged that he was not in charge of the boiler room at the time of the incident. The Petty Officer, who was in charge, answered the call from the bridge, and relayed that the escort vessels had detected a submarine, and there needed to be an increase in power. He had previously been in the boiler room on occasions when they had to increase or decrease power, and he acknowledged that it was a normal and routine part of duties for sprayers to be put on. He could not recall how long the extra sprayers were on. He thought perhaps 10-15 minutes. He did not hear the order to drop revolutions from the bridge. He acknowledged there was no call to action stations during this incident.
20. The applicant acknowledged that the role of the escort vessels is to protect the escorted vessel from moving through an area where sonar contact had been made with a submarine, and that the Sydney would have turned to starboard, increased speed and moved itself a mile away from the area within 10-15 minutes of increased speed. He agreed that this put the Sydney out of firing range.
21. The applicant was vague at times as to his memory of details of the Boiler Room incident. He became uncertain as to whether the engine room had reported that there had been actual submarine contact, or whether there was the possibility of a submarine contact. He acknowledged that checking the plumber blocks was a regular duty in the boiler room and the engine room.
22. The applicant gave no evidence about the onset of any symptoms of anxiety in the two years following this incident.
the sampan incident
23. The second stressful incident (the Sampan incident) occurred when he was on midshipman’s watch on the Vendetta. It was at night, and the ship had strayed from course. He saw a small contact on the radar, and he picked up a target. He called the operation room, which confirmed the contact, and an intercept was set up. Commander Leach and Lieutenant Commander Hudson both came to the bridge. As they closed in on the contact, they illuminated the target, and he recalls someone saying “They are shooting at us - get your head down” as they approached the target. The contact was an extended dug out canoe (a sampan), about 20 feet in length. When the search light picked the target up they could not see if people were on board, but he recalled seeing shadows. Then he recalls the cry that someone was shooting. He thought he heard rain falling and he remembered throwing himself to the deck either by, or on top of, Commander Leach. He recalls thinking “it is a clear starry night, where is the rain coming from”. He recalled flashes in the area of the boat. He said that it was dark, and they were a darkened ship until they brought the boat alongside. There were people senior to him on the deck at the time. When the sampan was brought alongside, he recalls seven or eight people were brought on board and searched. He observed this when he was relieved from watch at 3.50 am. He did not know at the time whether they had weapons, nor did he find out later. He said the prisoners were subsequently unloaded onto a Singaporean Police boat.
24. The next day, the applicant recalls people were taking “the mickey” out of him, saying that he may receive a medal arising out of this incident and the interception of the sampan, but then the Directions Officer came back from his lunch break, and he said that no prisoners had been taken the night before.
25. The applicant said that he formed the belief that there had been an accident involving the occupants of the sampan. He went on to elaborate that it was “a deliberate accident”, and he assumed they had been killed. He said there was a sudden change in the attitude towards him from “have another drink” to “don’t bother”. He said he could not tell if the Officer in question was having him on, or if he was being serious. He expressed the view that killing prisoners was something that he expected Asians to do, even though, in his words, “Europeans disagree with these sorts of practices”. He then said that he felt that if he had been more alert, and if his light had not strayed, they would not have intercepted the sampan. There was no follow up to what had happened at the voyage conclusion.
26. The applicant became less confident about the date of the Sampan incident as he gave his evidence. It was put to him that the Report of Proceedings [Exhibit R1, attachment 7, paragraph 6] referred to an incident that occurred on 9 February 1966, and referred to the “catch” of an Indonesian sampan with a crew of three and cargo. It referred to the men being handed to local police. The applicant conceded that this did sound like the incident in question, but his recall was of seven or eight people being taken into custody. Once he had the opportunity to view his Mid-Shipman’s Journal, he noted a reference in his Journal on 28 December 1965 to one small boat being arrested. No further comment was made about this incident in his Journal, and there was no commentary in his Journal as to an incident on 9 February 1966. The relevant pages of his Journal were admitted as Exhibit A7. As part of his training, he was required to keep a Journal during this period.
27. The applicant expressed surprise that Dr Ewer’s report of 28 September 2001 made no mention of the shots fired during this incident. He was convinced that he would have raised this issue with the doctor. He was also surprised when it was pointed out to him that he had not given evidence of gun fire to the VRB [Exhibit A6]. He believed that he would have raised this issue, plus his recall of falling on Commander Leach, at the time. The applicant continued to assert a vivid memory of hearing rain while looking at a clear tropical night.
28. The applicant did not observe that the people on the sampan had any weapons. He acknowledged that this incident of the Vendetta coming under fire was not in the Report of Proceedings.
29. The applicant acknowledged that he saw no evidence of bullets having hit the Vendetta, and he said that there was no subsequent discussion whatsoever between members of the crew about the nature of the “attack” apart from the lunch time discussion that he had referred to. The vessel returned to Singapore 12 days later. He did not make any follow up enquires during that stay. He had been selected to play rugby, and was preparing to go through the Sondra Straits, and he said that his time in Singapore on that occasion was taken up with a rugby match.
30. The applicant became less certain with respect to the time when the Directions Officer had returned, and allegedly told him that there had been no report of prisoners being taken. His initial evidence was that it was the next morning or afternoon, and within hours of his end of shift. Given that the Report of Proceedings indicated that the vessel departed that area very soon after the incident of 9 February 1966, it raised issues about whether the Directions Officer could possibly have been into Singapore and back in that amount of time. It was put to him that his evidence to the VRB was that it was a few days later that the Directions Officer advised him that there was no record of prisoners being taken. He said he could not be certain of the time gap.
the fire incident
31. The third incident occurred during eligible defence service when the applicant was serving on the HMAS Brisbane (the Brisbane) in or around 1974. He said that a fire broke out in the B boiler room (the Fire incident). His office was immediately next to the boiler room when the fire started, and he had to take action to get out of the area and ensure that missiles did not overheat as that would have caused further problems. At the time he was the Deputy Weapons Electrical Officer, and his particular responsibility was for the gun system, the sonar systems and the torpedoes and submarine missile system.
32. The applicant’s first alert to a fire was a call for emergency, and all hands to emergency stations. He went to his station and immediately went to damage control central. He received a call that they had shut down the fans to the boiler room to starve the fire of oxygen. He then received a call that the temperature in the magazine was increasing alarmingly. Chief Petty Officer Webster called him, and he went straight up to the Ikara missile deck, and checked the magazine temperatures that were up to 130º Fahrenheit. He explained that if missiles overheat, a “cook-off” can occur when explosives become too hot and there is a sympathetic detonation. He said that they pumped foam down the fire tubes to the Ikara missile deck. He went to the bridge and obtained permission to open the magazine to get the air flow through to the deck. They also laid shock mats over the top of the Ikara magazine, and put water on the shock mats to aid evaporation and reduce the temperature.
33. Once the shock mats were out, the temperature began to fall, and so they gained control of that area. Some personnel were injured and he saw injured personnel in the ward room after the event. The applicant’s recall was that it took around 30 minutes for the fire to be brought under control, and there was no exchange between the escort ships while they were dealing with that emergency. He recalled that there were some bitter feelings in the boiler room afterwards because of the lack of assistance from the Melbourne in trying to get a sick crewman to the Melbourne. The Brisbane did not have a doctor. He could recall no other incidents on the Brisbane. It appears there were no significant injuries in this incident.
34. When cross-examined about this incident, it was put to the applicant that in Dr Ewer’s first report of 28 September 2001 there was no mention of the fire. The applicant was surprised that he had failed to mention this incident, and he was convinced that he would have. He acknowledged that everyone was trained for such incidents, and that it was not an incident that ultimately threatened the integrity of the ship. He believed that there was a low level enquiry into the incident, but he was not required to report to that enquiry.
35. The applicant initially gave no evidence about the onset of the first symptoms of anxiety disorder, and it was put to him in cross-examination that when he lodged his claim [T5/56], he had stated that he first became aware of the symptoms of his anxiety disorder in 1972. He gave no evidence about his emotional state being exacerbated or aggravated by either the Sampan or the Fire incidents.
36. The applicant spent four years in the United Kingdom with the Navy between mid 1966 and mid 1970, where he studied for his degree in engineering at the Royal Naval Engineering College. He sought no formal treatment for any medical or psychological condition while in United Kingdom.
37. The applicant returned to Australia in 1970. The first mention of an anxiety condition was contained in his claim, when he reported that he first noticed symptoms in 1972. When questioned about this period, he said that when he returned to Australia, there were “things on his mind” at the time, including a number of major world events. He acknowledged that prior to 1972 he did not seek any treatment for any anxiety based symptoms, although he claimed to have talked to some of his colleagues in or around 1970 about personal difficulties. He had some medical friends in the Navy with whom he discussed things. He described his period in the United Kingdom as being a “bitter” part of his life. He said that to this day, he had difficulty accepting what happened in the United Kingdom.
38. When pressed further as to exactly what did happen in the United Kingdom, the applicant gave evidence of a motor vehicle accident in which he and his wife were involved in August 1969. He was stationed on HMS Stalwart in the United Kingdom at the time. His wife was very seriously injured in the accident, and to this day continues to suffer from major back problems as a result of significant spinal injuries. She spent three months in hospital in the United Kingdom recovering from her injuries. The applicant became emotional as he described authorities attempting to take his baby daughter off him, as a result of reports that he and his wife were unfit parents. He became clearly distressed when recounting the events of 1969 onwards. He described going to Australia House in London to obtain help, and also to his Divisional Office, but he was unable to get help. He said that third parties tried to get him to sign care of his daughter to them while his wife was in hospital, and he mentioned child welfare agencies being involved. He suggested that there was some significance about the location of the accident, but he did not clarify this point. He was not at all clear about this period in his life, but for the first time in his evidence exhibited genuine distress when recounting this incident. He described himself as becoming “quite uptight”. He said the accident and the events of that time have left him bitter.
39. The applicant confirmed that he was required to attend annual Medical Board examinations while in the Navy. He emphasised that there was a culture in the Navy, such that he would be considered to be “a big Sheila” if he made any complaints about emotional issues. He acknowledged that there was no record of any of the Medical Boards reporting that he had any emotional problems, and that at no stage in any of his medical records was there any mention of anxiety, or the symptoms of anxiety. He then went on to recount that when he returned to Australia in 1970, he could find no one who would listen to him about what had happened in Britain. He felt that even then there was lobbying against him, that he was an unfit parent. He indicated that as late as 1972 there were still issues in his life arising out of the accident and its sequelae for his family.
medical evidence
40. Dr Ewer saw the applicant on two occasions for medico-legal purposes. He provided two reports dated 28 September 2001 [T7/65], and 19 March 2004 [Exhibit A2]. In his reports, and based on his acceptance of the accuracy and veracity of the information provided by the applicant, he diagnosed the applicant’s anxiety disorder as being related to his war service.
41. In his evidence to the Tribunal, Dr Ewer emphasised that he was entirely reliant on the information provided to him by the applicant (and his wife who attended on the first occasion that he saw the applicant) in making this diagnosis. He said that after he was asked to prepare a second report, he had requested that the applicant’s solicitor provide some independent information, but he had received the response that there was nothing of interest in the records. He confirmed that he had not seen the applicant’s service records, the Report of Proceedings, his service medical records, or his application for a pension. He was shown the applicant’s medical records when cross-examined, and he said that had he been shown these records, which recorded a normal emotional state at all Medical Board examinations, he may have questioned the aetiology of the disorder. He expressed surprise that in his application for a pension, the applicant had listed 1972 as the date when he first noticed symptoms of anxiety disorder.
42. Dr Ewer addressed the phrase “psychosocial stressor” as contained in the SoPs relating to anxiety disorder. He described it as being a construct developed by the Department, and not a psychiatric term as such, and that he understood it as pertaining to the influence of social factors on an individual’s mind or behaviour. Dr Ewer said that if in the Boiler Room incident the applicant had felt he was in charge or should show leadership, he may have been forced to suppress his fear, and the social situation may have made the experience worse for him.
43. Dr Ewer noted that when the applicant recounted the Sampan incident, he made no mention of small arms fire, and he had recorded that what the applicant had recalled was distressing was that he felt responsible for the individuals being captured, and that his notes indicate that the applicant reported that the prisoners were actually killed. Dr Ewer said that given his age, the Sampan incident would have been a most distressing experience if it was a known fact that people had actually died. He said the less certain that fact was, the less the experience would have affected the applicant. Dr Ewer went on to say that the Sampan incident, was “very borderline” in terms of coming within the definition of a severe psychosocial stressor in the relevant SoPs.
44. In relation to the Fire incident, Dr Ewer said that a senior person may have felt willing to show leadership, and to suppress or deny their own emotions. He said incidents such as this can have a cumulative effect if they occur within a space of months, or perhaps years. The history in this case suggested to him that the applicant was psychiatrically unwell prior to the Fire incident, and that the Fire incident was an aggravating incident. He described the applicant as being a not particularly “psychologically minded” person, and that talking about feelings does not come easily to him.
45. Dr Ewer described “substantial stress” to mean significant distress, and possibly distress infrequently encountered and possibly not previously encountered. Emotional or subjective reaction, which is significant and not usually encountered in every day life. More than ordinary concern. He described it as more than a feeling of foreboding or feeling sad.
46. Dr Ewer acknowledged that the Fire incident and the motor vehicle accident were only mentioned on the second occasion that he saw the applicant. He considered that the applicant’s failure to disclose these two incidents on the first occasion that he saw him, did reflect on the applicant’s accuracy and reliability as a historian, and he speculated that this was why he possibly requested some independent evidence be provided at that point in time.
47. When asked about the boiler Room incident and how it had been recorded in his notes, Dr Ewer said that the applicant had told him that he was in the boiler room when there was a possibility of a submarine being nearby. He did not mention the plumbing blocks on that occasion, nor did he mention whether he had a position of authority. Dr Ewer had no record of the applicant saying how long this scenario lasted.
48. Dr Ewer considered his notes with respect to the Sampan incident on 28 December 1965. He said that the applicant did not elaborate on what recognition he hoped to receive when he spoke about being congratulated for the incident. The applicant indicated that a superior person to himself recounted that the eight prisoners had been killed. Dr Ewer had no record of when after the event the applicant was first told that they were killed. There was no mention of gun fire in Dr Ewer’s notes, or of the applicant throwing himself to the deck. Dr Ewer said that if he had a copy of the Report of Proceedings, he would have explored the failure to mention the ship being under fire.
49. In relation to the third stressor, the Fire incident, Dr Ewer said that on the first occasion that he saw the applicant he mentioned asbestos exposure as being a stressor, and did not mention a fire. He was confident that he would have recorded in his notes if the fire had been mentioned.
50. Dr Ewer had not previously been aware of the applicant’s statement in his application that he first became aware of his symptoms in 1972. He said there had been no indication of that in his notes, nor had he been told of the difficulty the applicant described having with various authorities to prevent his daughter being taken from him. Dr Ewer said that if the applicant had been distressed by that incident, he would have expected to have heard the full story from the applicant as Dr Ewer was exploring the aetiology of the anxiety disorder. He had no record of this being mentioned on the first occasion that he saw the applicant, and it was then mentioned incidentally on the second occasion, but with no detail as to the seriousness of the injuries to his wife, and with no information at all about the authorities trying to take their child from them. Dr Ewer considered it to be a significant omission that he had not been given that information.
other medical evidence
51. The Tribunal also had regard to the applicant’s service medical records [Exhibit A4] which cover the entire period of his service. He was subjected to regular medical examinations, and on each occasion, his “emotional stability” was regarded as being normal. Nowhere in his medical records is there any report of a condition or symptoms that could be interpreted as anxiety or emotional instability.
52. The original application for a pension is at T5/52. At page 54, the symptoms that were subsequently diagnosed as generalised anxiety disorder were outlined. The applicant wrote in his application that he first became aware of these symptoms in 1972.
other evidence
53. Attached to Commander Mulcare’s report dated 29 January 2005 [Exhibit R1] are Reports of Proceedings for each relevant vessel during the periods of the alleged stressors. With respect to the Boiler Room incident, two of the three vessels involved reported the passage to Subic Bay as being uneventful. The only mention of any submarine event was in the Report of Proceedings of the Vendetta, which reported the passage as being uneventful, but referred to several “false alarm” sonar contacts between Manus and Subic Bay.
54. With respect to the Sampan incident, the Record of Proceedings did not refer to any arrested sampan crews being transferred to the custody of the Malaysian Police or being killed.
55. The Fire incident is noted in the Record of Proceedings. Commander Mulcare also spoke to two of the senior officers who were on the Brisbane at the time who recalled the event. Neither recalled it as being a significant event, and said that the fire would have been under control in 5-10 minutes. The only casualties they recalled were some cases of smoke inhalation and a sailor with burns to the face and hands who was transferred to the Melbourne by helicopter.
56. The transcript of the VRB proceedings was Exhibit A6. Significantly, the fire incident was not raised at all by the applicant in his evidence before the VRB, and when recounting the Sampan incident, he made no reference to gun fire, or to “hitting the deck” as he had alleged before the Tribunal.
57. A statement of Graeme Gibson Rogers was received into evidence at Exhibit A5. That statement related to the Fire incident and set out Mr Rogers’ recall of that incident. Mr Rogers was not available for cross-examination. It was acknowledged by the applicant that Mr Rogers’ recall of the position held by the applicant at the time of the Fire incident was incorrect, and therefore certain assumptions he made in his statement as to the applicant’s duties were incorrect.
submissions
58. The applicant’s submission was that the first stressor, the Boiler Room incident, was the triggering event to his anxiety disorder, with the subsequent two incidents being aggravating events. The applicant submitted that the significant features of the first event were his age, it was his first extended sea voyage, it was his first experience of operational service, and he was in a ship with no defence capabilities. He was the only officer in training present.
59. In relation to the second stressor, the Sampan incident, the submission was that his distress was caused, not by the gun fire, but by the feeling of responsibility for those that may have been killed. A great deal of emphasis was put on the fact that he was a junior officer when the first and second incidents occurred. He could not show any “fear, hesitation or doubt”.
60. The Commission’s submission was that none of the incidents qualified within the meaning of a severe psychosocial stressor as contained in No 1 of 2000 and No 2 of 2000, the definition of “severe psychosocial stressor” being the same in each SoP. The Commission submitted that there was also no evidence of the onset of the disorder within the requisite time as required by the SoPs.
61. In considering the term “psychosocial stressor”, the Commission referred to White v Repatriation Commission [2004] FCA 633 where the Court commented that the definition of a severe psychosocial stressor involves both a subject and objective element. It must be objectively an occurrence that evokes feelings of a particular kind and subjectively it must also evoke substantial distress. The Commission submitted that none of the three incidents came within the definition of incidents that objectively could evoke such distress and that there was no evidence that the applicant had actually suffered the significant level of distress that is required by the SoP definition.
62. The Commission challenged Dr Ewer’s evidence as being flawed due to the lack of information provided to him by the applicant, and due to the reliance Dr Ewer placed on the veracity of the limited, and at times inconsistent information provided to him by the applicant in reaching his conclusion.
63. The Commission pointed to the lack of objective evidence in Naval records as to the occurrence at all of the first two incidents. The Commission challenged the applicant’s credibility.
legislative background
64. Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
65. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
66. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
67. As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
68. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this section.”
69. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
70. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
71. The Tribunal must consider the first two events in the context of the above provisions. The third event, the Fire incident, occurred during eligible defence service, and the standard of proof required with respect to an occurrence during eligible defence service is set out in s 120(4) of the Act, as affected by s 120B. The applicant on his own case contended aggravation of the condition during eligible defence service. On his own account the anxiety disorder predated that incident. Subsequently, his counsel conceded that it was difficult to even sustain the argument of an aggravation arising out of the Fire incident.
72. The claimed condition of anxiety disorder is the subject of SoPs. I note that where a SoP exists, I must apply the test prescribed by s120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
73. I am satisfied that the material before me points to a hypothesis connecting the condition of anxiety disorder with the applicant’s operational service. The hypothesis is that the applicant was subjected to a severe psychosocial stressor in the course of operational service and that his current diagnosed anxiety disorder relates to one or both of the two stressors that are pointed to that occurred during operational service.
74. SoPs have been determined by the RMA pursuant to s 196(2) of the Act in respect of the condition in question. The SoP in respect of Generalised Anxiety Disorder is Instrument No 1 of 2000 (No 1 of 2000), and is the SoP currently in force in relation to the first two incidents. In relation to the third incident, the relevant Sop is Instrument No 2 of 2000 (No 2 of 2000).
75. I now turn to the third step as enunciated in Deledio (supra). This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
76. Under clause 4 of No 1 of 2000 at least one of the factors set out in clause 5 must be related to any relevant service (being operational service) by the veteran. Clause 5 then provides as follows in relation to the first two incidents:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder … with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
…”
77. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at p 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
78. Based on all the material before the Tribunal, I am not satisfied that the hypothesis raised is a reasonable one, because upon the material before the Tribunal it is not possible to link the onset of anxiety disorder within two years of either of the first two alleged incidents. The material indicates that the earliest at which there appears to be any symptoms present was from 1970 onwards, at a time well beyond two years after each of the events referred to. The applicant’s claim that his anxiety disorder is linked to his operational service therefore fails.
79. Nevertheless, if the Tribunal is wrong in that regard, and if the Tribunal were to accept that the material before it gave rise to a reasonable hypothesis connecting the onset of anxiety disorder with relevant service, then the Tribunal would go on to the fourth step of the decision set out in Deledio. I will carry out that exercise.
80. Credibility is a significant issue in this case. The Tribunal found the applicant to be evasive and inconsistent in his evidence, and the Tribunal is of the view that he has altered his evidence over time to endeavour to fit his claim within the definition of “psychosocial stressor” as set out in the SoPs. An example of this was the fact that he did not mention any gun shots during the Sampan incident to either Dr Ewer or to the VRB. That material has only arisen in evidence before the Tribunal. The Tribunal’s observations were that any anxiety from which the applicant may now suffer very possibly began as a result of the significant motor vehicle accident in which he was involved in mid 1968, and the resultant threat that his daughter may be removed from the care of the applicant and his wife.
81. The Tribunal notes that Dr Ewer’s evidence and his conclusions are based entirely on the veracity of the applicant’s statements in forming his opinions. I have taken this into account when deciding upon the weight to be given to his evidence and opinions. Dr Ewer himself began to qualify his conclusions when he realised that there was information that he had not been provided with that may have influenced his decision and led him to ask further questions of the applicant.
82. There was no reason to believe that the contents of Commander Mulcare’s report are not correct, and the Tribunal accepts the contents of that report and its attachments, in particular what was reported or was not reported in the Records of Proceedings of the different vessels.
83. The Tribunal also finds that on the basis of the evidence neither the Boiler Room incident nor the Sampan incident could be termed to be a psychosocial stressor within the meaning of No 1 of 2000. In that regard a severe psychosocial stressor is defined in the SoP as being:
“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
84. In White (supra) the Federal Court endorsed the view of the Tribunal that there is both a subjective and an objective aspect to the term “severe psychosocial stressor”. In the judgment His Honour said at paragraph 30:
“30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
85. The Tribunal finds that the incidents relied on that occurred during operational service do not meet the objective requirements of an identifiable occurrence contemplated by this definition. In addition, the Tribunal is not satisfied that the applicant was particularly disturbed about either of these events. He showed no emotion when giving evidence about these events, and he did not give any evidence of symptoms of anxiety arising before 1969 or 1970 at the earliest. When discussing the accident which occurred involving his family in 1968, he showed genuine distress and emotion. The applicant was trained to deal with incidents such as the Boiler Room incident.
86. In relation to the Sampan incident, the Tribunal is satisfied, beyond reasonable doubt, that there was no gun fire, and that the incident does not fit within the definition of the SoP. The Tribunal finds that the applicant was not told that anyone had been killed or had even possibly been killed in the Sampan incident, and that feature of his story has emerged to possibly accommodate the definition of the psychosocial stressor as set out in the relevant SoP.
87. The Tribunal finds, beyond reasonable doubt, that there is no reliable evidence that the applicant experienced the onset of an anxiety disorder before at the earliest 1970. That is based on the applicant’s own evidence, upon medical records, and also based upon his evidence about the accident in the United Kingdom, and how he felt after that incident. The evidence is that the first report of suffering from symptoms is contained in his claim form in which he reported the symptoms as first appearing in 1972. Based on the definition of clinical onset, as set out in Robertson (supra) at p 670, the Tribunal finds that the clinical onset of the disease was not before 1972. He had received no formal treatment prior to that time, and it would appear that is the date when he first became aware of symptoms that he subsequently related to an anxiety disorder.
88. The applicant conceded through his counsel that the Fire incident did not cause the onset of an anxiety disorder which pre-dated the incident, nor was an aggravation alleged. It is unnecessary for the Tribunal to go on and consider that incident in light of this concession. Nevertheless, the Tribunal makes the finding in respect of the Fire incident that his anxiety pre-dated the Fire incident; that the Fire incident was not a major incident, and it was an incident for which the applicant was well trained. There was no evidence provided to the Tribunal of a clinical worsening of anxiety disorder in the year following that incident as is required by the SoP.
89. There is not sufficient evidence before the Tribunal such that the Tribunal could be satisfied to its reasonable satisfaction that the Fire incident amounted to a severe psychosocial stressor within the definition of the relevant SoP (the same definition as set out in No 1 of 2000). The fire on board, albeit serious, was a relatively minor incident in the spectrum of “fire incidents”. The applicant was well trained to deal with such an incident. He was an experienced officer by 1972. The fire was quickly and efficiently managed by all involved, and although a stressful event, it does not fit the definition. The Tribunal finds, to its reasonable satisfaction, that the Fire incident was not a psychosocial stressor, and that there is no evidence of any alteration in the applicant’s emotional state arising out of this incident.
90. For the above reasons, I consider that the hypothesis raised by the material before me is not consistent with any of the factors in the relevant SoPs, and so the SoPs do not uphold the asserted hypothesis connecting the applicant’s generalised anxiety disorder with the circumstances of either his operational service or defence service. As a result, the hypothesis is not reasonable, and by virtue of s 120(3) of the Act, I find beyond reasonable doubt that there is not sufficient ground for determining that the claimed condition of anxiety disorder was war-caused. In addition I find that the condition that arose in or around 1972 was not aggravated by defence service. As a result, the applicant’s claim must fail. The decision under review is affirmed.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard.....................................
AssociateDates of Hearing 14/15/16 February 2005
Date of Decision 27 June 2005
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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