Fisher and Repatriation Commission
[2003] AATA 828
•11 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 828
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/470
VETERANS' APPEALS DIVISION ) Re GARY LEE FISHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date11 August 2003
PlaceAdelaide
Decision The decision under review is affirmed.
[The Hon C R Wright QC]
Deputy President
CATCHWORDS
Veterans' Affairs - disability support pension - whether applicant suffered from war-caused post-traumatic stress disorder - whether applicant experienced relevant stressors as defined in SoPs - whether there was a reasonable hypothesis within s120(3) of the VE Act connecting the injury with the applicant's service.
Veterans’ Entitlements Act 1986 – s120(1) and (3), 120A(3)
Statement of Principle No 3 of 1999
Ferriday v Repatriation Commission (1996) 69 FCR 521
Repatriation Commission v Gorton (2001) FCA 1194
Stoddart v Repatriation Commission [2003] FCA 334
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Cooke (1998) 160 ALR 17
REASONS FOR DECISION
11 August 2003 The Hon C R Wright QC., (Deputy President) Background
1. The applicant is a 50-year-old unemployed painter currently living in South Australia with his de facto wife. He was born on 29 May 1953.
2. The applicant served in the Royal Australian Navy from 8 January 1969 until his discharge on grounds of temperamental unsuitability on 11 June 1970.
3. The applicant had operational service on board HMAS Sydney from 16 February 1970 to 7 March 1970. At that time he was 16 years of age. He was absent from Australia for a total period of 18 days.
4. On 20 March 2000 the applicant lodged a claim with the respondent for entitlements under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”), claiming that he suffered post-traumatic stress disorder (“PTSD”) in consequence of events which occurred on board HMAS Sydney while at anchor in Vung Tau Harbour for a period of about 4 hours, 40 minutes on 27 February 1970.
5. On 21 March 2000 the Repatriation Commission refused the claim on the basis that the diagnosis of post-traumatic stress disorder could not be established and gave notice of its determination that same day.
6. On 23 May 2000 the applicant lodged an application to the Veterans’ Review Board seeking a review of the Repatriation Commission’s determination in respect of PTSD.
7. On 7 December 2001 the Veterans’ Review Board affirmed the decision of the Repatriation Commission in respect of PTSD and the applicant was advised of this decision in a letter dated 13 December 2001.
8. On 19 December 2001, the applicant lodged with the Administrative Appeals Tribunal an application seeking a review of the Repatriation Commission’s original decision.
Issues
9. In this case all time limits under the Act have been observed and the earliest date from which benefits may run, if this application is successful, is 20 December 1999, a date 3 months prior to the lodgement of the original claim.
10. The Tribunal has jurisdiction under s175 of the Act.
11. In respect of his operational service in Vietnam, subsections 120(1) and (3) of the Act, as affected by s120A, apply in relation to the alleged connection between the veteran’s PTSD and his operational service.
12. As the claim was made after 30 June 1994, the Repatriation Medical Authority’s Statement of Principles (SoP), apply. In line with the decision of the Full Federal Court in the case of Repatriation Commission v Gorton (2001) FCA 1194, the SoP applicable is the current Sop. The current SoP for PTSD is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999.
13. The applicant has an accrued right to have the SoP in force at the time of the original Commission decision applied if the Tribunal finds that to be more beneficial to the applicant. However, in this case the current SoPs were the SoPs in force at the time of the original Commission decision.
14. The applicant has particularised the stressful incidents precipitating his PTSD as:
“(a)Hearing explosions whilst working below the waterline on the HMAS Sydney, whilst it was anchored in Vung Tau Harbour.
(b)hearing a loud banging noise whilst in the mess, when the Sydney was anchored (sic) Vung Tau Harbour.”
He alleges that these experiences made him “feel extremely fearful and helpless”.
15. The applicant alleges that these incidents constituted one or more of the “severe stressors” enunciated in paragraph 5 of SoP No 3 of 1999 and were causative of his PTSD.
16. The relevant parts of SoP No 3 of 1999 and the amendment thereto by SoP No 54 of 1999 are as follows:
(i) Statement of Principle No 3 of 1999
“Kind of injury, disease or death
2. (a) This Statement of Principles is about post traumatic stress
disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, “post traumatic
stress disorder” means a psychiatric condition meeting the
following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was
confronted with an event or events that involved
actual or threatened death or serious injury, or a
threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear,
helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or
more of the following ways:
(i) recurrent and intrusive distressing recollections of
the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were
recurring (including a sense of reliving the
experience, illusions, hallucinations, and dissociative
flashback episodes, including those that occur on
awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal
or external cues that symbolize or resemble an
aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or
external cues that symbolize or resemble an aspect
of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma
and numbing of general responsiveness (not present before
the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations
associated with the trauma;
(ii) efforts to avoid activities, places, or people that
arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in
significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving
feelings);
(vii) sense of a foreshortened future (eg, does not expect
to have a career, marriage, children, or a normal life
span); and
(D) persistent symptoms of increased arousal (not present
before the trauma), as indicated by two or more of the
following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant
symptoms set out in paragraphs (b), (c) and (d)) is more than
one month; and
(F) the disturbance causes clinically significant distress or
impairment in social, occupational or other important areas
of functioning,
attracting ICD-9-CM code 309.81.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound
medical-scientific evidence that indicates that post traumatic stress
disorder and death from post traumatic stress disorder can be related
to relevant service rendered by veterans, members of Peacekeeping
Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting post traumatic stress
disorder or death from post traumatic stress disorder with the
circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post
traumatic stress disorder; or
(b) experiencing a severe stressor prior to the clinical worsening of
post traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post
traumatic stress disorder.
…
Other Definitions
8. For the purposes of this Statement of Principles:
“DSM-IV” means the fourth edition of the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders;
“experiencing a severe stressor” (See now No 54 of 1999) 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’ Entitlement Act applies, events that qualify as 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;
…
“relevant service” means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…
Application
9. This Instrument applies to all matters to which section 120A of the Act applies.”
(ii)Statement of Principle No 54 of 1999
“1. The Repatriation Medical Authority amends, under subsection 196B(2) of
the Veterans’ Entitlements Act 1986 (the Act), Instrument No.3 of 1999,
(Statement of Principles concerning post traumatic stress disorder), by:
A. deleting the definition of “experiencing a severe stressor” in clause
8 and inserting in its place the following definition of
“experiencing a severe stressor” in clause 8:
“‘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;”..
2. The amendments made by this instrument apply to all matters to which
Instrument No.3 of 1999 and section 120A of the Act apply.”
17. It will be seen that SoP No 54 of 1999 does not more than correct an apparent error or typographical omission of the word “severe” (underlined by me) in the definition of “experiencing a severe stressor”.
18. The applicant contends that the decision of Mansfield J on 17 April 2003 in Stoddart v Repatriation Commission [2003] FCA 334 requires that the question whether or not a claimant has experienced a “severe stressor” is dependent upon the claimant’s subjective assessment of the nature and quality of the alleged severe stressor rather than its objective characterisation by the relevant fact finding tribunal, based upon the available evidence. Stoddart’s case is currently under appeal to the Full Federal Court.
19. The respondent contends that, whether the correct approach to this question is from a subjective or objective standpoint, the applicant did not experience a severe stressor as defined in the relevant SoP and did not suffer PTSD as a consequence thereof.
20. The VE Act 1986 makes specific provision for the manner in which a claim such as the present must be approached.
21. Section 120(1) and (3) provide as follows:
“(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.
…
(3) In applying sub-section (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.”
22. It will be seen that the Act effectively imposes an onus of disproof beyond reasonable doubt once a reasonable hypothesis for causation by war service is raised by the evidence.
23. Section 120A (3) provides as follows:
“(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 b y the person is reasonable only if there is in force:
(a)a Statement of Principles determined under sub-section 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.”
24. Section 120A(1) provides (inter alia) that s120A applies to Part II claims in respect of operational service by a veteran. It thus applies in respect of the present applicant’s claim. In Bushell v Repatriation Commission (1992) 175 CLR 408 at 414, Mason CJ, Deane and McHugh JJ said:
“The material will raise a reasonable hypothesis within the meaning of s120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
In order for the material to raise a reasonable hypothesis that material must be least point to the hypothesis. It is not sufficient that the material raise a mere possibility.”
See Creyke and Sutherland at 413 and cases discussed at 413 and following.
The Evidence
A The applicant
25. The evidence in chief of the applicant was contained in his written statement Exhibit “G”, and was supplemented by his oral evidence at the Tribunal hearing. In Exhibit “G” the two incidents which were at the heart of his claim were described in these terms.
“A.I recall when the Sydney was anchored in Vung Tau Harbour hearing a load [sic] explosion.
I was well below the water line, towards the bottom of the ship.
I was getting a large box of cereal, I think, from towards the bottom of the ship.
Part of my duties was in the stores on this trip.
It was a fairly loud explosion, I was not certain when it had come from and though it could have been from an enemy attack.
I dropped the box and made by way up the ladders to a higher depth. [sic]
I cannot recall which deck I got to but I recall there being people on this particular deck.
I think I asked them what that noise was.
I was told it was a scare charge.
I have not experienced such a noise previously.
I was not aware at the time that scare charges were going to be dropped.
I cannot recall what I next did after being told this.
I recall later on being on one of the outer decks and seeing smaller boats travelling around the Sydney, that had sailors in it who were dropping charges into the water.
I was told by someone else that they were dropping scare charges into the water.
B.I recall another significant incident happening when I was lining up for food in the mess.
I heard a loud banging noise when lining up for food in the mess.
I did not know where this noise had come from.
Numerous other sailors in the mess were concerned as well.
It was a very loud noise.
I subsequently found out that it was the chain from the anchor that had been pulled in.
It was a loud single bang, which I subsequently learned came from the chain being bunched together and then dropping into the chain “locker”.
I had not heard this degree of loud noise before.”
26. In his oral evidence the applicant said that he had no prior notice or knowledge that “scare” charges would be set off around the ship while it was at anchor. As he learned shortly after hearing the first scare charge, the purpose of these charges was to act as a deterrent to potential Viet Cong saboteurs who may try to mine the ship. The applicant said that on hearing the first scare charge it sounded as though the ship had been hit. It was very close to that part of the ship in which he was working. He climbed quickly to a higher deck, as he was concerned about his safety. He never actually saw the scare charges being used, but he could say they were not as big as depth charges and were being set-off from a dinghy circling the ship. He said that on hearing the first scare charge he was very nervous and he thought his life was at risk, although on being told of their purpose he was able to view subsequent charges being set-off with equanimity.
27. The applicant also described his consultations with 3 psychiatrists by whom he was examined in connexion with his claimed PTSD. He saw Dr W B Blakemore in November 1996, Dr Nicholas Ford in December 1999 and Dr Shane Ryan on 4 August 2000. His examination by Dr Blakemore was arranged by the Department of Veterans’ Affairs. The examinations by Dr Ford and Dr Ryan were arranged by the Vietnam and War Veterans Inc. organisation of Murray Bridge. The applicant was critical of the examinations by Dr Blakemore and Dr Ford, suggesting that both doctors were perfunctory and off hand in their approach. He said Dr Ryan was more thorough and he found it quite easy to speak candidly to him. He has seen Dr Ryan on 3 separate occasions.
28. Under cross-examination the applicant was asked about his expectations and experiences upon joining the Navy. The applicant stressed that he was very immature both physically and temperamentally when he enlisted. He weighed 38 kgs and was 5’ tall. He thought he would be able to learn a trade and travel the world. Initially he was sent to HMAS Leewin for 12 months basic training, but after being there only 3 months he decided he wanted to leave. He subsequently made several applications to be discharged, on one occasion writing direct to the Prime Minister. It was soon after this, in June 1970 about 4 months after returning from Vietnam that he was discharged. (See Exhibit “F”)
29. The applicant said that after leaving the Navy he became a regular user of marijuana and at the present time he smokes about half a dozen “joints” and has 15 to 20 “pipes” per day. He also started drinking heavily in the Navy and continued to abuse alcohol until about 1980. He never sought medical treatment for alcoholism and, until seeing Dr Blakemore, he had never sought medical assistance for any psychiatric condition. He never mentioned the 2 incidents in Vung Tau Harbour to the Navy doctors or anyone else when pursuing his claims for an early discharge in 1970, and he did not suggest to anyone in authority that his wish to leave the Navy was related in any way to those events.
30. The applicant said that once he was informed about the use of the scare charges around HMAS Sydney in Vung Tau, he was “fine” and no longer felt anxious or at risk. As to the anchor chain incident he said the noise caused by the falling chain was something which he had not experienced on the ship on any other occasion either before or after entering Vietnamese waters.
31. The applicant said that he is startled by unexpected loud noises, he is less tolerant of people now, and he becomes anxious driving a car. It will be noted when reference is made to Dr Ryan’s report later in these reasons, that Dr Ryan referred to the anchor chain incident, not as a precipitating cause of the applicant’s PTSD, but rather as an example of his exaggerated startle response to loud noise. That the applicant was in fact startled by this event seems to me to be fairly unremarkable. From his description it is obvious that his shipmates were also startled by the unexpected bunching up of the anchor chain as it fell into the chain locker. The applicant said he sometimes has nightmares which cause him to sweat profusely. He agreed that he told the Veterans’ Review Board that HMAS Sydney was in Vung Tau Harbour for a period of 24 hours, but (under some pressure) he agreed that the total time the ship was at anchor was only 4 hours, 42 minutes. He denied that he had been attempting to mislead by saying it was 24 hours. He agreed that HMAS Sydney was a noisy environment and that the ship’s engines were running constantly while it was in the Vung Tau Harbour. He agreed it was possible that there were notices on the ship warning of scare charges, but he said he was unaware of them. When the anchor chain fell in a heap he was told (by whom he doesn’t remember) that such an event occurs sometimes. He found out what had caused the noise soon after it happened. He was “happy” with the explanation.
32. When questioned about his examination by Dr Blakemore, the applicant denied that he had told the doctor that he didn’t have nightmares. He said, “He has put down something I didn’t tell him”. The applicant said that when examined by Dr Blakemore and Dr Ford he was aware that if his claim for PTSD was to be successful it had to be causally related to his Vietnam service. It was put to the applicant that when he saw Dr Ryan he was aware that he had had 2 rejections and had failed before the Veterans’ Review Board, and that consequently when speaking to Dr Ryan he had given a significantly different history from that which he had initially given Drs Blakemore and Ford. The applicant denied this.
B.Dr W B Blakemore, Dr N Ford and Dr S Ryan.
33. Dr Warwick Browning Blakemore has been a Fellow of the Royal Australia and New Zealand College of Psychiatrists since 1976. He gave evidence by telephone at the hearing. He said that in his opinion the applicant was not suffering from PTSD when he was examined. He expressed the belief that his interview with the applicant on 11 November 1996 took about half an hour to three-quarters of an hour, although he had no clear recollection of its duration. Significantly he was able to affirm that he had taken 17 foolscap pages of notes during the consultation, a fact which of itself tends to suggest a thorough and searching interview. I should say at once that I am quite satisfied that Dr Blakemore conducted a professionally competent and comprehensive examination of the applicant. I reject the applicant’s criticisms of Dr Blakemore, among which was the suggestion that Dr Blakemore should have conducted a “structured interview” as part of the consultation and diagnostic process. Dr Blakemore said that the “structured interview” technique was one which he does not use. He said that it has no place in psychiatry as a diagnostic tool and has a tendency to “lead” a patient to give answers favourable to a desired diagnosis. Dr Ryan (who did use a structured interview as part of his dealings with the applicant) did not disagree with this view, when it was put to him in cross-examination. Even more significantly, however, Dr Ryan agreed with counsel for the respondent that, if he had been given a history similar to that recorded as the applicant’s history in Dr Blakemore’s report viz that the applicant complained of no anxiety, no panic, no nightmares, and no intrusive thoughts of a traumatic nature, he would not have undertaken the “structured interview” himself because the history given would have left no room for a diagnosis of PTSD.
34. The substantial disparity between the histories claimed by Dr Blakemore and also Dr Ford (whose report was received into evidence without objection, but who did not give oral evidence) to have been given by the applicant to them and the history claimed by Dr Ryan to have been given to him, lies at the heart of the different medical opinions expressed during the hearing of this case. Counsel for the respondent suggested to the applicant that when he found that the reports by Dr Blakemore and Dr Ford did not support his claim in respect of PTSD he decided, perhaps with the assistance of others, to exaggerate and improve his history when seeing Dr Ryan. The applicant denied this, but to my mind it is the most likely explanation for the disparity in the histories.
35. During the course of his evidence, Dr Ryan volunteered the following remark “I think a lot of veterans before they see someone for an independent assessment have probably read a lot about post-traumatic stress disorder and they could rehearse it and it would certainly be an opportunity for people to do that if they put their mind to it, that is for sure.” During his years of practice, Dr Ryan has been consulted by 20 or 30 naval veterans from the Vietnam War. His experience and opinion on this issue may be seen as lending some support to the thesis of the respondent that the process described by the doctor was followed by the applicant in the present case, but it is not an opinion on which I rely as a basis for disbelieving the applicant.
36. The relevant parts of Dr Blakemore’s report of 13 November 1996 are as follows: (Exhibit “A” pp42-44).
“INTRODUCTION
Mr Fisher is 43, and lives with his defacto wife and young child, and an older son from a previous relationship of Mr Fisher’s, at Waikerie.
HISTORY
Mr Fisher said that he had been to see his local doctor at Waikerie to see if he could get a disability pension recently, and his doctor had suggested that, although he could get a disability pension because of back trouble, a hernia he has, and a broken foot that he suffered years ago, he maybe qualified for a Repatriation pension on the basis of post-traumatic stress disorder.
Mr Fisher said that he has not worked for about five years, and never seems to have the energy to work, that he never really settled down to anything after leaving the navy.
He said he does not sleep well, he wakes from time to time in the night, is aggressive, often having rows with his defacto wife, and said that he smokes “dope” too much, explaining that he and his defacto wife would have spent $10,000 on marijuana last year, he smokes it constantly these days.
Mr Fisher said that he had been born and brought up in Western Australia, in the country, and joined the navy after leaving school and, although he had signed up for 12 years, he was discharged as “unsuitable” after two years. He said he had had enough, it was not what he thought it was going to be and he had applied for discharge several times unsuccessfully and eventually got out of it by writing to the then Prime Minister, Mr Gorton. He said he worked a bit in Perth for a while after that, and then did a four-year apprenticeship to become a painter, in the most stable time of his life, he said, and then was painting in Geraldton for some years, and in 1979 came to South Australia, to the Waikerie area, and he said he has really lived in this district ever since, apart from three or four brief stints back in Western Australia. Mr Fisher said that the attraction about South Australia had been marijuana.
Further questioned about his war experience, Mr Fisher said that when he was in HMAS Sydney, he said it was traumatic there waiting for something to happen. He said he used to work in stores in the belly of the ship and other vessels used to drop depth charges all round the ship and the first time that happened he said he was sure they had been hit. Again, when the anchor was raised before they left, the noise of that had them diving for cover too, as though there had been a hit. He said he was young at the time, and that it had actually felt exciting then. Now, Mr Fisher said that he remains mistrustful of Vietnamese, having heard a lot about the Vietnamese who seemed to work on the docks in Vietnam in the day, and then fight as Viet Cong at night. Mr Fisher described no anxiety, panic, nightmares, intrusive thoughts of a traumatic nature nor any other symptoms associated with post-traumatic stress disorder.
MENTAL STATE
Mr Fisher presented as a slim, lightly bearded man, wearing a bluish top and jeans, and he sat through the interview in no apparent distress, and he spoke openly and with some humour about his life.
Mr Fisher gave his history in a largely untroubled way, and there was no indication of anxiety, depression nor any other abnormality of emotion. Mr Fisher was alert, orientated, and of good enough concentration to give a clear account of himself.
In my opinion, Mr Fisher is not suffering post-traumatic stress disorder, and there is no psychiatric disorder attributable to his war service.”
37. Dr Nicholas Ford is also a Fellow of the Royal Australian and New Zealand College of psychiatrists. His report of 13 December 1999, addressed to Mr Peter Verrall of the Vietnam and War Veterans Service at Murray Bridge is as follows: (Exhibit “A” p29-30).
“Thank you for requesting an assessment of Gary and for providing the helpful report of my colleague Dr Warwick Blakemore. I note he has applied for a War Veterans’ pension as a result of service in and around Vietnam with the Royal Australian Navy. He has a total of six children, two from this relationship and four from previous ones. He is receiving a disability pension.
He says that he has difficulties with a bad back and cannabis addiction, he has not worked since 1992.
He told me he thought he should have a military service pension because of his cannabis addiction, noting that his stepfather obtained a pension for emphysema.
He said that he served in the Royal Australian Navy from the age of fifteen and a half to approximately nineteen. During this time he served on the HMAS Sydney, apparently this was a troop carrier. During visits to Vietnam the vessel was moored at various ports. There was no direct experience with enemy soldiery or attacks on the vessel however depth charges were dropped at random intervals apparently to discourage Viet-Cong sappers and divers. This made him start and on occasions the chainlocks would make a noise as the anchor was deposited back and this would also startle him. He also said that he developed a needle phobia because of all the injections that he had to serve in this area.
He was discharged from the Navy as unsuitable, stating that this was because of his short stature, which meant that he didn’t fit in with the other sailors. It is not clear as to what else was involved but said that he had had to write to the Prime Minister in order to be discharged from the Services.
He then worked as a painter serving an apprenticeship and subsequently being self employed. However he gave this away in the end and pursued vegetable gardening for awhile.
Whilst there was some slight history of a startle response, I could not obtain a history of dreams or intrusive recollections of any severity. There did not seem to be a history of phobic avoidance, he did describe some difficulty with what he termed “radical things”. This seemed to revolve around driving away at rapid speed from the Police when they were chasing him for speeding on different roads.
He presented as a slight wizened man with a rather rueful and diffident demeanour.
I read the report of Dr Blakemore. He described a similar history to my own in particular the war service and the use of marijuana.
I discussed with Gary that I was agreeing Dr Blakemore that I did not feel that there was any psychiatric disability attributable to war service. He seemed at the time satisfied with this answer.”
38. Both Dr Blakemore and Dr Ford in their respective reports describe the applicant’s demeanour during their consultations with him in terms which were generally consistent with his presentation whilst giving evidence during the AAT hearing. It may or may not be significant that the history recorded by both doctors suggests that the applicant claimed to have experienced an even greater number of potentially traumatic events during his naval service than he claimed during his evidence. Even so, because of the lack of significant symptoms neither doctor was able to discern any proper basis for diagnosing PTSD.
39. When Dr Ryan examined the applicant he had copies of each of the reports prepared by Dr Blakemore and Dr Ford, and it is not surprising therefore that he sought from the applicant some explanation for the absence of a history of significant psychiatric symptoms in those reports. The applicant then made complaints to Dr Ryan similar to those which he made during his evidence at the hearing as to the perfunctory and unsatisfactory nature of both earlier examinations. Dr Ryan either accepted these complaints or saw no reason to challenge them and noted that during the course of 3 examinations the applicant appeared consistent in the presentation of his symptoms to him. In such circumstances it is not altogether surprising that Dr Ryan came to a different conclusion from the other psychiatrists, although it is noteworthy that he did not interview or seek the applicant’s permission to interview his wife, an obvious source of potential confirmation or contradiction of the applicant’s account of ongoing distress. No other independent or potentially corroborative source of material lending support to the applicant’s evidence was presented to Dr Ryan or to me at the AAT hearing.
40. Dr Shane Ryan is also a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He examined the applicant on 4 August 2000. In his report to the Vietnam and War Veterans’ Inc. on 7 august 2000 (Exhibit “A” pp57-65) he said:
“This is to confirm that Mr Fisher attended a psychiatric assessment on 4 August 2000. Mr Fisher served on the HMAS Sydney in 1970 in Vietnamese waters. He has requested a psychiatric assessment to determine whether there has been any psychiatric symptoms as a result of his war-related experiences.
Mr Fisher is a 47-year-old man who is currently in a defacto relationship with 2 children. He has a previous marriage which resulted in 4 children. He added that his current relationship is going poorly and there is a high probability of them separating in the near future.
Mr Fisher currently receives a disability support pension for a combination of physical problems including back pain, foot pain related to multiple fractures, an inguinal hernia and cannabis addiction.
He has not worked for the past 2 years and prior to this had sporadic casual work on fruit blocks in the Riverland area. He is a qualified painter by trade but has not worked in a full time capacity for over 5 years.
SYMPTOMS
Mr Fisher served on the HMAS Sydney in Vietnamese waters during the war. He estimates he was in Vietnamese water from 16 February to 5 March 1970. The HMAS Sydney was delivering troops and supplies at this stage.
He was employed in stores on the ship and it was while in the store area of the ship that he heard a loud, unexpected explosion. “At that point something snapped in me I thought it was the end of me, I thought we had been hit. I dropped everything and bolted, I was just waiting for the water to come in, I was very frightened”.
This unexpected explosion was in fact a harmless detonator being used by the naval personnel to discourage sabotage and was a routine process. However at the time Mr Fisher was unaware of this and it came as a complete surprise as noted above.
He explained that this explosion occurred in the context of a number of other experiences which heightened his levels of anxiety. For example he was told to beware of South Vietnamese because it was possible that they were booby trapped when they were on board to receive stores. He described general air of suspicion, guardedness and anxiety while in these areas.
Following this experience he had a heightened degree of anxiety and was easily startled with other loud noises. He gave the example of “hitting the deck” when he heard a loud noise made by the chain of the anchor.
I asked Mr Fisher to explain how these experiences have affected him emotionally and cognitively. He said he has regular dreams and nightmares of Vietnam, waking in a sweat. He is irritable, angry and tends to get into fights and is prejudiced against Vietnamese people.
In order to elicit a comprehensive history a structured interview was conducted using the Davidson et al 1989 structured interview for Post Traumatic Stress Disorder. His Group A experience of trauma responses are recorded above and represent an event that involved perceived serious injury and death and his description of his response indicates one of intense fear.
In terms of Group symptoms he gave the following responses. He said he often thinks about his experiences in Vietnam particularly during the current appeal process. He gets wound up when talking about it, feeling anxious and on edge.
He added that generally however he goes months without ever thinking about Vietnam. Events such as the Timor conflict heightened his awareness at this stage.
He described recurrent dreams of being in a ship which was hit and was sinking. In the dream he feels that he is covered in water and usually wakes up. These dreams are associated with profuse sweating to the point where his wife complains about him staining the bedclothes. He added that he uses cannabis to help him sleep and avoid these nightmares.
In terms of re-experiencing his phenomena he explained that once when at a rock concert there was a loud sound put out by the PA system which made him feel temporarily disorientated. I note that there have not been any other episodes which satisfy the criteria for re-experiencing phenomena.
He stated that being in the presence of Vietnamese people and in certain rooms with green paint, make him remember his experience on the HMAS Sydney with some degree of anxiety.
He added that he has physical symptoms of tightness in his chest and difficulty breathing when focusing on the possibility of an explosion and his ship sinking.
In terms of Group C symptoms he explained that he tends to avoid talking about Vietnam preferring to “Try and forget about it”.. He describes the use of large amounts of alcohol in the past and more recently habitual use of marijuana in an attempt to reduce his thoughts about Vietnam. He added that over the past few years his life has revolved around Cannabis in one way or another. He spends a considerable amount of time seeking out, paying for or growing marijuana and when it is available smokes it continually. He even moved from Western Australia to South Australia in 1980 due to his perception that the drug laws were more lenient in this state than Western Australia.
In terms of avoidance behaviour he did not score significant symptoms. He explained that he tended to avoid Anzac Day and RSL’s but when on to describe his philosophical standpoint which explained his behaviour. “I don’t want to glorify war”.
There was no significant evidence of psychogenic amnesia but he did describe symptoms of loss of interest. He also shows positive symptoms of detachment estrangement with having far less to do with people than he had previously. He has no close friends and prefers his own company over the last few years. He explained they owned a block of land in the Riverland where he often goes on his own just to be at peace.
He describes some reduced range of affect when dealing with his children having less ability to feel close to them.
When questioned about his future he gave fairly realistic responses talking about his hopes of moving to Broome one day to live.
In terms of D Group Symptoms he describes disturbed sleep cycle and marked irritability. He is prone to angry outbursts and often gets in physical fights. He exhibits features of road rage and at times this has resulted assaultive behaviour. He explained how last year he forced a driver to stop his care on the freeway and was intending to assault him. The driver of the other vehicle sped off, crashing into Mr Fisher, fracturing his wrist. He talked about angry behaviour when trying to get parking space in supermarket carparks and is often threatened to assault other drivers.
He describes poor concentration over the last couple of years and I note that this may be secondary to his excessive use of Cannabis. Generally he does not exhibit hypervigilance but when in crowded situations he tends to be quite on edge and uncomfortable. He describes an exaggerated startle response particularly to loud noises which resemble his initial explosion.
TREATMENT
Mr Fisher states that he has never seen a doctor complaining about any of these anxiety symptoms due to the fact that he is wary of doctors. “They filled us full of drugs when we were in the navy and I didn’t want to go hear another doctor again”. He also expressed his suspicion that he may be classified as crazy and sent to a psychiatric asylum.
MEDICATION
Nil
PAST MEDICAL HISTORY
As noted above Mr Fisher fractured his wrist approximately 12 months ago. He also has a history of fractures to his left foot in a motorcycle accident and fractured ribs from a surfing accident several years ago.
FORENSIC HISTORY
Mr Fisher has a forensic history reflecting his impulsive risk taking behaviour. He has a number of offences relating to theft, 1 of growing marijuana and multiple driving offences. The driving offences include drink driving, careless driving, loss of points and speeding.
FAMILY HISTORY
Mr Fisher’s mother’s sister suffered a mental breakdown and his father who was a World War II veteran was described as neurotic.
PERSONAL HISTORY
Mr Fisher has 2 sisters and 1 brother. Both of his sisters have had surgery for cancer.
He describes his childhood as relatively normal, living in a small country town and going on family holidays once per year. He indicated that his parents argued and his father was strict with a tendency to become physical at times.
Mr Fisher left home at the age of 15 to join the Navy. He left again at the age of 16. He’d applied for a discharge because he felt he was uncomfortable in the Navy. He explained his anxiety about being sexually underdeveloped and feeling self-conscious. He explained that he was short and looked younger than his years and had no secondary sexual characteristics such as pubic hair. This made group showering problematic and he was in his opinion ridiculed because of this.
After writing a letter to the Prime Minister and seeing several psychologists he was deemed unsuitable for duty and discharged.
Following this he worked in Perth for a number of months before going to Geraldton, WA, and completing a 4 year apprenticeship as a painter. He moved to South Australia in the late 70’s but has tended to move backward and forwards several times between South Australia and Western Australia.
His first marriage was in 1984 and they split up mutually, stating incompatibility.
In general his relationships and his work history take on a chaotic pattern over a number of years with features of unreliability at work due to headaches and significant use and abuse of marijuana and alcohol.
EXAMINATION
Mr Fisher attended his appointment punctually. He was a slim built man with a long beard who was dressed in neat, clean clothes. There was no evidence of intoxication at the time of the appointment.
Otherwise his appearance was unremarkable with there being no overt features of aggressive behaviour, anxiety or depression. There was some reduced reactivity in his emotions however appearing to be quite well controlled and calm.
He was able to give the above history without any hesitation and there were no obvious contradictions in his story.
The history given was consistent with a diagnosis of a Post Traumatic Stress Disorder which was confirmed by the use of a structured interview.
SUMMARY AND CONCLUSION
Mr Fisher is a 47-year-old man who experienced a frightening experience while serving in the Royal Australian Navy. This occurred while in Vietnamese waters in the form of an unexpected explosion which he interpreted as his ship being hit and consequently about to sink. Understandably this caused high levels of anxiety particularly given the context of this explosion that is that it was in Vietnamese waters and he had been warned and repeatedly made aware of the possibility of boobytraps and sabotage.
His response to Group B, C and D symptoms of Post Traumatic Stress Disorder satisfies the criteria of mild to moderate symptoms of Post Traumatic Stress Disorder. His use and abuse of alcohol and marijuana was described by Mr Fisher as a way of reducing the intensity of his anxiety and sleeping difficulties caused by his PTSD.
Based on the history provided by Mr Fisher and presuming the veracity of his history of exposure to traumatic events in Vietnamese waters and his response to the structured interview for PTSD, I have concluded that he suffers from chronic PTSD as a result of his exposure to traumatic events during his service in the navy.
MEDICAL IMPAIRMENT ASSESSMENT according to GARP Fifth Edition.
Subjective Distress
Mr Fisher describes recurring symptoms causing mild distress. It should be noted that his level of distress fluctuates depending on his situation. At present due to his appeal process he is often reminded of his experiences leading to increased symptoms. Overall I would rate him at 3 points.
Manifest Distress
There was minimal signs of distress during his interview however given his irritability and explosive behaviour I would conclude that distress is certainly sometimes apparent to others and receive 3 points.
Functional Affects
Mr Fisher describes minor interference with functions and some everyday situations – 1 point.
Occupation
Exacerbation of symptoms may cause occasional days off work – 1 point. It should be noted that his current disability in terms of work is related to physical problems more so that his psychiatric ones.
Domestic Situation
Family functioning has deteriorated and estrangement or divorce is a likely consequence – 6 points.
Social Interaction
There is a description of substantial reduction in social interaction – 5 points.
Leisure Activities
Mr Fisher describes loss of interest in most recreational pursuits – 5 points.
Current Therapy
Mr Fisher would be recommended to have some psychiatric treatment to assist with his poor impulse control, angry and explosive behaviour and high reliance on marijuana and other drugs to control his symptoms. It is my opinion that he warrants psychiatric treatment at least in the form of medication and psychotherapy – 3 points.”
It is apparent that Dr Ryan when referring to “Group A”, Group “B” and other “Group” responses is referring to those groups of experiences and symptoms listed in paragraph 2(6) of SoP No 3 of 1999.
I find Dr Ryan’s assessment of the applicant’s Group C symptoms and behaviour somewhat less than convincing, even on the basis of his acceptance of the applicant as an accurate and reliable historian. It seems clear to me that drug addiction and a lack of close friends are plainly matters which may be equally plausibly explained by other characteristics and practices of the applicant than their being avoidance mechanisms as defined in Group C of the SoP. It must be noted that the existence of Group C criteria are a “sine qua non” for the diagnosis of PTSD in accordance with the SoP.
41. I also find Dr Ryan’s description of the applicant in the paragraph of his report headed “Examination”, to be interesting in that at his initial interview he found the applicant’s appearance was unremarkable and there were no overt features of aggressive behaviour, anxiety or depression. This description may be compared with Dr Blakemore’s oral evidence when he said “I see a lot of people with PTSD. It is actually distressing to interview such people because their distress is palpable – they also have aspects of fear and anxiety in the presentation of symptoms – he (the applicant) had none of that”.
It is plain that Dr Ryan found the applicant’s claimed stress reaction to the scare charge incident to be surprising, but he thought the applicant’s extreme immaturity was a substantially relevant factor in the circumstances.
42. I found Dr Ryan to be a careful and helpful witness. He was not disposed to unduly “argue his patient’s case”. He made several concessions which were plainly not particularly helpful to the applicant, and his explanation of some issues which I had initially found troubling, were plausible and convincing. If the history with which he was supplied had been reliable and creditworthy, his opinion that the applicant is suffering from chronic PTSD as a result of exposure to traumatic events during naval service may well have been accepted, but as things stand, whilst I am prepared for present purposes to accept the applicant’s account of the scare charge incident and the anchor chain event as having occurred basically as he described, I am not able to accept his description of his immediate and subsequent emotional and other reactions to either event, and I am not prepared to accept his description of chronic symptoms as described by him to Dr Ryan.
43. Counsel for the applicant suggested that his client’s history as given to Drs Blakemore and Ford was not necessarily inconsistent with that provided to Dr Ryan. It was submitted that he may have found the Blakemore and Ford interviews stressful and, as a result may not have been forthcoming with a comprehensive description of his distressing symptoms. Had the applicant said this it may have provided food for thought, but he did not. He chose to criticise both Dr Blakemore and Dr Ford on the basis that they had not accurately recorded what he said and that they were slipshod in their methods. I do not accept these criticisms. In my opinion the explanation for the enhanced picture of chronic symptomatology which the applicant presented to Dr Ryan is to be found in his conscious decision to embellish his story and fabricate symptoms to ensure a favourable diagnosis.
Conclusions
44. I have already said that, in general, I accept the applicant’s evidence as to the occurrence of what I have called the scare charge incident and the anchor chain event. I accept that he was surprised and perhaps frightened by each incident, but I find that upon learning of the nature and origin of each noise any fears were quickly allayed.
45. It is plain to me that neither of these incidents amounted to an event which involved actual or threatened death or serious injury or a threat to the physical integrity of the applicant or his shipmates. It is perhaps arguable that the scare incident involved a threat of death or injury to any Viet Cong saboteurs who may have been in the vicinity of HMAS Sydney, but it is debatable whether this consideration would bring such an occurrence into play as a “traumatic” event within paragraph 2(b), Group (A)(i) of SoP No 3 of 1999.
46. However there is no need for me to resolve this question for the simple reason that I do not accept the applicant’s contention or the diagnosis of Dr Ryan that the applicant suffers, or at any relevant time, has suffered the additional necessary symptoms of PTSD specified in the Group B, C, D, E and F criteria enunciated in paragraphs 2(b) of the SoP. I am satisfied on the balance of probabilities that at no relevant time has the applicant suffered from PTSD. The applicant has certainly not established that he suffers from that disorder to my reasonable satisfaction (see VE Act s120(4)).
47. As a consequence it seems to me that the applicant’s claim fails “in limine” and it is therefore unnecessary for me to consider the existence of a “reasonable hypothesis” connecting PTSD with the applicant’s war service.
This conclusion is supported by the approach of Lee J in Ferriday v Repatriation Commission (1996) 69 FCR 521 which was approved and adopted by the Full Federal Court in Repatriation Commission v Cooke (1998) 160 ALR 17. In delivering judgment the Full Court said:
“We think that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a "determination" that the disease is war-caused [The court then examined the authorities on this issue, including the legislative history of s120, arguments as to anomalies that its approach would produce, and then justified its findings in these terms.] …
In our view there are two answers to those contentions. First, the language of s 120(1) and (3) is so clear as to not raise any doubt on the point. Secondly, any suggested illogicality disappears when one focuses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question. Furthermore, one should not overlook the ameliorative effects of s 120(5) and (6) in relation to difficulties in establishing facts.”
48. Consequently it is also unnecessary to consider the potential application of Stoddart’s case to the case now under review and, as that decision is now under appeal, it would be inappropriate for me to express any view as to the principles discussed or the conclusions reached by the primary judge.
49. Although my approach to the issues in the present review has differed from that of the Veterans’ Review Board, I have come to the same conclusion as the Board viz that the respondent was right to refuse the applicant’s claim for entitlement based upon PTSD. The decision under review is therefore affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 1 and 2 May 2003
Date of Decision 11 August 2003
Counsel for the Applicant Mr Simon Ower
Solicitor for the Applicant
Counsel for the Respondent Mr Greg Doube
Solicitor for the Respondent Greg Doube
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