Godwin and Repatriation Commission
[2005] AATA 309
•8 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 309
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1270
VETERANS’ APPEALS DIVISION ) Re JOHN ROBERT GODWIN
Applicant
And REPATRIATION COMMISSION Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberDate8 April 2005
Place Sydney
Decision The decision under review is varied.
The Tribunal determines that Mr Godwin suffers PTSD which is war-caused. The earliest date of effect is 2 April 2002.
The decision of the Respondent finding that conductive hearing loss in the right ear and otitis externa of both ears are not related to service is affirmed.
The matter is remitted for assessment in accordance with the findings made.
Ms G Ettinger
Senior Member
catchwords
Veteran – Operational Service – Tribunal diagnoses PTSD - stressor met in SOP – ear problems not pursued and decision affirmed in that regard – decision varied to reflect finding that PTSD held to be war caused.
legislation
Veterans Entitlements Act 1986 ss 9, 120
Repatriation Medical Authority - Post Traumatic Stress Disorder (“PTSD”) Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999;
case law
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Budworth (2001) 66 ALD 285
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 49 ALD 193
Stoddart v Repatriation Commission [2003] 77 ALD 67
Woodward v Repatriation Commission [2003] 200 ALR 332
Smith v Repatriation Commission [2002] AATA 526
REASONS FOR DECISION
8 April 2005 Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member1. The application before the Tribunal was that of Mr John Robert Godwin, appealing against the decision of the Repatriation Commission (“the Respondent”), dated 7 March 2002 (T2), as affirmed by the decision of the Veterans’ Review Board dated 16 July 2003 (T16), which held that Post Traumatic Stress Syndrome (“PTSD”), conductive hearing loss in the right ear and otitis external of both ears were not war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. Mr Godwin told the Tribunal that he was pursuing only his claim for PTSD. Accordingly the Tribunal affirmed the decision of the Respondent with regard to Mr Godwin’s conductive hearing loss in the right ear and otitis external of both ears without hearing evidence or further considering it.
3. At the Hearing, Mr Godwin was represented by Ms E Wood of counsel. Mr M Huthnance appeared for the Respondent.
ISSUES BEFORE THE TRIBUNAL
4. The Tribunal had to decide:
· the correct diagnosis for the Applicant’s mental illness;
· whether the condition was war-caused pursuant to section 9 of the Act
LEGISLATION
5. The relevant legislation in this matter is the Veterans Entitlements Act 1986. The provisions of section 9 and section 120A of the Act apply, and the matter is to be decided in accordance with the relevant Statements of Principles (“SoPs”). The parties agreed that the relevant SOP is:
Post Traumatic Stress Disorder (“PTSD”) Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999;
6. The relevant provisions of the applicable SoP follows:
“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
…
Other definitions
8. For the purposes of this Statement of Principles:
…
“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’ 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.”
EVIDENCE BEFORE THE TRIBUNAL
7. The Tribunal had before it documents ("the T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the Exhibits tendered during the hearing.
8. The Applicant, Mr Godwin and Mr H Josephs, a retired Captain of the Royal Australian Navy (“the Navy”), and researcher for Writeway Research Service, gave oral evidence. Professor C Quadrio and Dr S Allnutt, both psychiatrists, gave concurrent evidence before the Tribunal.
BACKGROUND
9. Mr Godwin whose date of birth is 28 June 1948, has been married twice and has one living child from the first marriage, and one child who died at a very young age. Both the marriage breakup and the loss of the child were very significant and stressful events in Mr Godwin’s life. He is currently in his second marriage, which took place in 1977, and has adult children, with whom, he told the Tribunal, he has a good relationship.
10. The Tribunal noted that Mr Godwin joined the Navy in 1964, aged fifteen and a half years. There was agreement between the parties that his periods of operational service on several Navy ships, which are relevant to this claim, were:
· Service in Malaysia and Singapore from 26 July 1966 to 8 September 1966;
· Service in Vietnam from 8 to 22 April 1967; and
· Service in Vietnam from 28 April to 12 May 1967.
11. There were three specific incidents which Mr Godwin claimed caused him great distress, the Gurkha incident and the sampan incident which occurred during operational service, and what the Tribunal has called the New Guinea incident, which took place in 1968, after the operational service period. The Tribunal was satisfied that Mr Godwin gave consistent accounts of these to the doctors who examined him, and to the Tribunal.
12. Firstly, the Gurkha incident; Mr Godwin recounted that when he was on HMAS Parramatta, his colleague and fellow radio operator, Fred, who had accompanied Gurkhas on a patrol, and whom he helped back up onto the ship, had a very wide-eyed look of horror about him. Mr Godwin said that he had never forgotten that look. He said that Fred did not talk about the incident. The Gurkhas, Mr Godwin said, looked as though they had been in a fight, and had blood on them. He said that before that incident, his life and world had been “bright and bouncy”, and was different from then on. He said that his feelings about himself had changed, his self worth and esteem had dropped, he could not deal with noise or groups of people, and on shore leave he drank a lot, specifically to get drunk. Mr Godwin said that after that incident, he used to smuggle a bottle of spirits on board after shore leave, and keep it in the radio operator’s safe to drink whenever he could.
13. The Tribunal also considered the evidence Mr Godwin gave about the sampan incident. This occurred, Mr Godwin said, while he was on board HMAS Sydney in Vung Tau harbour, a busy waterway with war ships, sampans and other craft, both in water and flying overhead. Mr Godwin explained there was a zone around the ship with barbed wire which prevented other craft getting too close to it. He observed a patrol boat, possibly an American ship, blow up a sampan, some distance from him. He said that he was able to hear the machine gun fire, and saw bodies and body parts, including a small body, perhaps that of a child, thrown into the air in connection with this explosion. Mr Godwin said that there were no witnesses nearby, and no one came to see what was going on, but remarked that HMAS Sydney was a big ship. He said that the incident made him feel shocked, scared, and worse than he had already been feeling after the Gurkha incident. He said that he did not tell anyone about it and started drinking even more heavily.
14. The New Guinea incident took place in 1968, after the period of operational service. Mr Godwin recounted how he was locked in the radio operator’s confined cabin space on HMAS Aitape when he thought it had been rammed. He reacted with fear for his life, suffered what has been described as a panic attack, and was hospitalised as a result.
15. In early 1972, Mr Godwin consulted a general practitioner who referred him to a psychiatrist, Dr Shand, because he felt so badly about himself, weak and lonely and suicidal. He also took an overdose. He was later admitted to the Naval Hospital where he saw psychiatrist Dr McGeorge with whom he said he did not get on well.
16. Mr Godwin was discharged from the Navy in 1972, moved a few times, and in 1994, studied a bachelor of science with counselling. He later worked with Qantas for a few years, and did other jobs. He has not worked since 1999, and told the Tribunal that he cannot work due to his PTSD, symptoms of which he recounted to the Tribunal. They included nightmares, sleep disturbance and flashbacks.
17. Mr Godwin said that in 1998 when he saw a television interview with Don Chalmers who had been his navigating officer on HMAS Parramatta, it brought back his feelings of worthlessness, fear and weakness. He has been seeking assistance from psychiatrist Dr I Hayes, since December 2000, and continues to see Dr Hayes approximately every six weeks. Mr Godwin said that he suffers panic attacks, cannot deal with noise or crowds, which he in fact avoids, and continues to have vivid nightmares which he described. Mr Godwin said that he no longer drinks alcohol.
EVIDENCE OF CAPTAIN RAN (RTD) H JOSEPHS AM OF WRITEWAY RESEARCH SERVICE PTY LTD
18. Mr Josephs, whose reports of 2 March 2002 (T11), and 16 July 2004 (Exhibit R4) were before the Tribunal, also gave oral evidence. He described his research sources; the Tribunal noted also that there were documents which he had not consulted such as American records, and the ship’s logs from the archives.
19. In his written statement, he said that the Gurkha incident as described by Mr Godwin, was highly unlikely to have occurred. He stated that he had referred the matter to officers whose duties were relevant to operational events of the time, and who were on HMAS Parramatta at the relevant time, who confirmed that finding. He also wrote of his personal experience with Gurkha soldiers whom he described as “well-led, well-disciplined, proud of their appearance …”, in support of his views that Mr Godwin’s statements regarding Gurkha patrols were untenable. The Tribunal noted the letter of Mr Halley who had been Executive Officer (second in Command) of the ship, and would, Mr Josephs said, have been closely involved with the organisation and conduct of boarding and landing parties and the embarkation and disembarkation of visitors to the ship. In it he stated that: “There were no Gurkha infantry patrols landed or re-embarked whilst HMAS PARRAMATTA was the Guardship, during the period from 19th August to 8th September, 1966.”
20. In his oral evidence, Mr Josephs said that the Gurkha incident could not have occurred without the knowledge of the Commanding Officer, and without being recorded.
21. Mr Josephs also referred to the sampan incident, noting that the Applicant considered the boat which fired on the sampan blowing it up may have been an American Swift Boat. He detailed the security arrangements for HMAS Sydney in Vung Tau harbour, which did not include the use of Swift Boats he wrote. He stated in his oral evidence that he had consulted the ship’s proceedings and other documentation, and found there was no confirmed record of an attack on sampans. In that regard, Mr Josephs agreed he had not carried out research with the US Navy.
22. Mr Josephs also researched the New Guinea incident Mr Godwin claimed to have suffered when he was the radio operator on board HMAS Aitape in 1968 in which Mr Godwin said that whilst he was locked in a confined space below deck, the ship was involved in a collision during which he thought he would die. Mr Josephs wrote that he found no record of such collision either in 1967 or 1968. He conceded however, that if one patrol boat came alongside another with a heavy bump during exercises, from Mr Godwin’s position it may have seemed like a collision, but noted that it would not have been considered a collision, and therefore not reported. There was recognition of the fact that Mr Godwin had been working in a very confined space, and that he may indeed have been locked in, which was not a good experience.
23. Before proceeding to decide whether any psychiatric condition Mr Godwin suffers is war-caused, the Tribunal had to decide a diagnosis.
THE DIAGNOSIS
24. The standard of proof as far as diagnosis is concerned, is set out in section 120(4) of the Act, and is to the reasonable satisfaction of the Tribunal (Repatriation Commission v Cooke (1998) 160 ALR 17, Repatriation Commission v Budworth (2001) 66 ALD 285, Benjamin v Repatriation Commission (2001) 70 ALD 622) Section 120(4) of the Act follows as relevant
“120 Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
25. The Tribunal noted from the medical evidence that Mr Godwin suffers mental illness which is likely to either be PTSD, or major depressive disorder with anxiety symptoms including panic attacks and possible agoraphobia.
26. In order to come to a decision about the diagnosis, the Tribunal reviewed the medical evidence, noting that Mr Godwin has been under treatment with Dr Hayes, since 21 December 2000, and currently consults him approximately every six weeks.
27. The Tribunal had reports of Dr Hayes before it at T8, T10 and T15. In his first report written on 8 March 2001 (T8) shortly after he first assessed Mr Godwin in December 2000, Dr Hayes opined that the Veteran was suffering with delayed PTSD, and concluded that “it appears both his PTSD symptomatology and his past substance abuse relate to his service experience.” Dr Hayes referred to both the Gurkha incident and the sampan incident.
28. In a letter received by the Respondent on 26 November 2001 (T10), Dr Hayes recorded that by Mr Godwin’s accounts, the most stressful event for him was a patrol boat incident in New Guinea when he was aged 19, and which was outside the operational service period. Dr Hayes also referred to numerous other situations in which he described the Applicant as “distressed or revolted”, giving examples such as the Gurkha incident and the sampan incident.
29. In his report at T15 dated 5 May 2003, Dr Hayes who had been treating Mr Godwin since 2000, referred to “traumatic experiences” in Mr Godwin’s early naval history with which he seemed to cope until triggered by a traumatic event in which he felt he would drown, (New Guinea, 1968), leading to a panic attack. Dr Hayes stated that: “His subsequent hospitalisation and general behaviour deterioration would be consistent with an anxiety disorder which had many of the features we would now call PTSD.” Dr Hayes also commented that Mr Godwin was unaware of the connection between his traumatic experiences and his episodic dysfunction, and that after leaving the Navy, “his symptoms appear to have remained reasonably quiescent until being rekindled following counselling some six years ago.”
30. Dr Hayes concluded by opining that Mr Godwin suffered, (at the time of his report in 2003), PTSD in partial remission, with brief episodes of depression, also then in remission. He opined that Mr Godwin had “somewhat dramatic personality traits”, but did not believe he had a personality disorder.
31. The two medico-legal psychiatrists who examined Mr Godwin gave concurrent evidence and had reports before the Tribunal. Professor C Quadrio’s report of 4 February 2004 was Exhibit A1, and Dr S Allnutt’s reports were dated 28 October 2003 (Exhibit R1), and 15 September 2004 (Exhibit R2).
32. Dr Quadrio took a very detailed history and came to the conclusion after her assessment of Mr Godwin that he suffers from Chronic PTSD. She stated that he has the characteristic symptoms, “including hyperarousal, reactivity to triggers, intense preoccupation and avoidance phenomena.” Dr Quadrio said that she regarded his recurrent panic attacks as part of the hyperarousal of PTSD. (Exhibit A1).
33. Dr Allnutt also took a very detailed history, and commented that Mr Godwin gave a history that he had no major difficulties in his functioning until 1992, but recognised that he had always been depressed and “covered it up”. Dr Allnutt also reported that the incidents Mr Godwin reported as being psychologically disturbing for him were the sampan incident and the New Guinea incident. Dr Allnutt reviewed the reports of doctors who had treated Mr Godwin previously, and commented that there was documented evidence of psychiatric symptoms dating back to 1968. Dr Allnutt commented that at the time Mr Godwin developed depressive and anxiety symptoms in 1993, there were no further stressors then identified. (Exhibit R1)
34. In his later report at Exhibit R2, and in response to further questions from the Respondent, Dr Allnutt stated that his opinion remained the same as in his earlier report, namely that : “the applicant’s manifested symptoms of depressive and anxiety disorder, namely dysthymia, in addition to major depressive disorder with anxiety symptoms including panic disorder with possible agoraphobia. … I do not believe that the argument for post traumatic stress disorder can be made in this case with reasonable medical certainty, in the absence of clear evidence of a severe trauma.”
35. The Tribunal noted that Drs Quadrio and Allnutt agreed on the fact that Mr Godwin suffers anxiety, and referred to the spectrum of disorders, noting that it was a question of whether what Mr Godwin suffers is PTSD related to events from the operational period of his service, or anxiety due to his life experiences.
36. The Tribunal noted Dr Allnutt’s opinion that if the events (the Gurkha incident and the sampan incident did in fact occur as described by the Veteran), then based on his evidence the causal chain to establish war-caused PTSD would be satisfied.
37. Dr Allnutt stated that he was satisfied that Mr Godwin was in a stressful situation during his service, but questioned strongly whether he met the stressor required to satisfy the SoP. Dr Allnutt also referred to the distressing life events Mr Godwin had experienced after 1972, and after leaving the Navy, when he consulted Dr Shand for the first time. Dr Allnutt added that he did not intend to convey that the anxiety was not present before that date as Mr Godwin had been seen by Dr McGeorge back in 1968 when he had a massive dissociative episode after the 1968 New Guinea incident, and became symptomatic. Dr Allnutt considered that the New Guinea incident in which Mr Godwin was trapped in a confined space and thought he was going to die, could be termed the life threatening experience which could have been the trigger for Mr Godwin’s PTSD.
38. Dr Allnutt considered there was a vagueness regarding the Gurkha event, and considered it could have been part of distorted memory.
39. Dr Quadrio, when questioned about the extreme reaction Mr Godwin had to the 1968 incident in the ship in New Guinea, said that she considered that event to be one of a number of stressors rather than the definitive one. She emphasised that there were no independent records for either the New Guinea incident, the sampan, or the Gurkha incidents. She agreed that the life events (marriage breakdown and the death of a child), contributed to Mr Godwin’s overall vulnerability.
40. The Tribunal noted the doctors’ opinion that Mr Godwin’s alcohol consumption could have complicated the depression, noting however, that when he stopped drinking, his depression continued, and accepted Dr Quadrio’s opinion that Mr Godwin’s alcohol abuse was secondary to his symptoms, rather than being the primary disorder.
41. The Tribunal noted also from the evidence that although psychosis was explored with Drs Quadrio and Allnutt, it was satisfied that psychosis had not been diagnosed.
42. In coming to a decision regarding diagnosis, the Tribunal is mindful that diagnosis is a medical matter (Budworth (supra)). In making the decision about Mr Godwin’s diagnosis, the Tribunal referred to Mr Godwin’s evidence and the medical evidence. As the medical evidence tended towards PTSD as being the diagnosis, the Tribunal referred to the indicia in DSM-IV, as they appear in Instrument No.3 of 1999. As relevant they follow:
“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”.
43. The Tribunal noted Mr Godwin’s evidence that he changed after experiencing the Gurkha incident, and in particular after the sampan incident. It accepted that he became withdrawn, and drank alcohol to excess after his tour of duty on HMAS Parramatta and HMAS Sydney, exhibiting signs of a major depressive disorder with anxiety disorder including panic disorder and possible agoraphobia after the 1968 communications room incident in New Guinea (reports of Dr. Allnutt and Dr. Quadrio).
44. Since then, in particular after seeing the television interview with Don Chalmers, in 1998, he has had recurrent thoughts and dreams of the incidents he says he witnessed, avoids activities and groups of people, as well as feeling detached or estranged. He reports irritability and problems with sleep, and has suffered impairment in social and occupational areas, in satisfaction of the indicia in DSM-IV. He has been unable to work since 1999.
45. The Tribunal was mindful of the doctors’ opinion that alcohol consumption could have complicated Mr Godwin’s condition, but that even when he stopped drinking, his depression continued, and accepted Dr Quadrio’s opinion that Mr Godwin’s alcohol abuse was secondary to his symptoms rather than being the primary disorder.
46. The Tribunal was mindful also that although psychosis was explored in the concurrent evidence given by Drs Quadrio and Allnutt, it was satisfied that psychosis had not been diagnosed.
47. The Tribunal was satisfied from all the evidence before it, including that of the Applicant and the medical evidence of Drs Hayes, Quadrio and Allnutt, and applying the standard of proof in section 120(4) of the Act, and the indicia in DSM-IV, that Mr Godwin suffers from PTSD.
48. The clinical onset of PTSD was difficult to determine from the evidence before the Tribunal. Dr Hayes who had been treating Mr Godwin since 2000, first mentioned he had a delayed PTSD in a report dated 8 March 2001. However it was clear from the evidence that Mr Godwin had exhibited psychiatric signs and symptoms of PTSD long before that time.
THE PROCESS OF DECIDING WHETHER A DISEASE IS WAR-CAUSED
49. Section 9 of the Act sets out the circumstances in which an injury or disease shall be taken to be war-caused. So far as relevant it provides:
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;
50. In the case of Mr Godwin, who has operational service, the relevant standard of proof is pursuant to sections 120(1) and (3) of the Act. They provide 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.
51. Where a veteran has operational service, as Mr Godwin has, the Tribunal must follow the steps as set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 in deciding whether or not a disease is war-caused. The Full Court described the application of the relevant legislative provisions as follows:
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). …
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.
applying deledio (supra) – first step
52. Applying the first of the Deledio steps, the Tribunal must consider all the material which is before it, and determine whether that material points to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the Veteran. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
53. The Tribunal noted Mr Godwin’s evidence regarding a number of incidents which he regarded as stressors during his operational service. In his evidence and submissions, he described each of the two raised stressors which he considered responsible for his condition. They will be referred to as the Gurkha incident and the sampan incident.
54. The Tribunal heard the evidence of Mr Godwin gave about the Gurkha event to consider whether it raised an hypothesis connecting his PTSD with the circumstances of the particular service rendered by him. He recounted that during operational service, when he was on HMAS Parramatta, he saw his colleague and fellow radio operator, Fred, who had accompanied Gurkhas on a patrol, and whom he helped back up onto the ship, had a very wide eyed look of horror about him. Mr Godwin said that he had never forgotten that look. He said that Fred did not talk about the incident. The Gurkhas, Mr Godwin said, looked as though they had been in a fight, and had blood on them. He said that before that incident, his life and world had been “bright and bouncy”, and was from then on different from before. He said that his feelings about himself had changed, his self worth and esteem had dropped, he could not deal with noise or groups of people, and on shore leave he drank a lot, specifically to get drunk. Mr Godwin said that after that incident, he used to smuggle a bottle of spirits on board after shore leave, and keep it in the radio operator’s safe to drink whenever he could.
55. The Tribunal also heard the evidence Mr Godwin gave about the sampan incident to consider whether it raised an hypothesis connecting his PTSD with the circumstances of the particular service rendered by him. This occurred, Mr Godwin said, while he was on board HMAS Sydney in Vung Tau harbour, a busy waterway with war ships, sampans and other craft, both in water and flying overhead. Mr Godwin explained there was a zone around the ship with barbed wire which prevented other craft getting too close to it. He observed a patrol boat, possibly American, blow up a sampan, some distance from him. He said that he was able to hear the machine gun fire, and saw bodies and body parts, including a small body, perhaps that of a child, thrown into the air in connection with the explosion. Mr Godwin said that there were no witnesses nearby, and no one came to see what was going on, but remarked that HMAS Sydney was a big ship. He said that the incident made him feel shocked, scared, and worse than he had been feeling already after the Gurkha incident. He said that he did not tell anyone about it and started drinking even more heavily.
56. Mr Godwin described how after those events, he became increasingly isolated and could not mix with people, was abusive to his superiors and drank to excess.
57. The Tribunal considered all the material before it and was satisfied that the evidence Mr Godwin put before the Tribunal about the Gurkha incident and the sampan incident point to hypotheses connecting his PTSD with the circumstances of his operational service.
applying deledio (supra) – second step
58. Having decided that the material raises hypotheses connecting Mr Godwin’s condition with the circumstances of his operational service, the Tribunal moved to consider the relevant SOP, which in the case of PTSD, it was agreed, is Instrument No. 3 of 1999 as amended by No. 54 of 1999.
59. Instrument No. 3 of 1999 includes a factor that must as a minimum exist, before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the Veteran’s service. The relevant factor to consider in this case is:
“5(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.”
60. The definition of “experiencing a severe stressor” in Instrument No. 3 of 1999 was amended from 24 June 1999 by No. 54 of 1999 to provide:
“‘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;”.
applying deledio (supra) – third step
61. As there is an applicable SoP in force, as noted above, the Tribunal then had to form an opinion whether the hypotheses as raised were reasonable. They will be reasonable if the hypotheses fit, that is to say, are consistent with the template to be found in the SoP. The hypotheses raised before the Tribunal 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 hypotheses do contain these factors, they could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If either hypothesis fails to fit within the template, it will be deemed not to be "reasonable". If neither is reasonable, the claim will fail.
62. Mr Godwin relied on the Gurkha incident and the sampan incident, claiming they were the severe stressors which were responsible for the development of his PTSD. The Tribunal considered whether either could be characterised as a severe stressor within the terms of factor 5.(a) of Instrument No.3 of 1999. In doing so, the Tribunal took into account Mr Godwin’s accounts of the occurrences and of his reactions, first to the Gurkha incident and then the sampan incident.
63. He told the Tribunal that after the Gurkha incident, his life and world which had been “bright and bouncy” was now different from before. He referred to his self worth and esteem dropping, not being able to deal with noise or groups of people, and increasing his alcohol consumption. Mr Godwin’s evidence was that after the sampan incident which followed, and in which he saw a sampan blown up and body parts thrown into the air, including what appeared to be a small child, he felt shocked, scared, and even worse than after the Gurkha incident, and drank even more heavily.
64. If Mr Godwin experienced a severe stressor in accordance with the template in the SoP, he must have experienced, witnessed, or been confronted with an event or events that involved actual or threat of death or serious injury, or a threat to his or another person’s, physical integrity.
65. The Tribunal finds that Mr Godwin’s experiences with the Gurkha incident do not meet the severe stressor test in the SoP. In regard to the Gurkha incident, Mr Godwin may have been disturbed by the look of horror on Fred’s face, but he did not experience, witness, or be confronted with an event or events that involved actual or threat of death or serious injury to his own or another person’s, physical integrity. If Fred had experienced such threat, or seen atrocities or violence, they had taken place before he returned to the ship, and before he was seen by Mr Godwin. Further, Mr Godwin’s evidence was that Fred never spoke of such incidents.
66. In relation to the sampan incident, Mr Godwin’s evidence was that he witnessed casualties, an explosion, and parts of bodies flying into the air which meets factor 5.(a), and the template in Instrument No.3 of 1999.
67. The Tribunal was mindful of the views of the Full Court of the Federal Court in Woodward v Repatriation Commission [2003] 200 ALR 332, and Stoddart v Repatriation Commission [2003] 77 ALD 67. In Woodward (supra), their Honours approved Mansfield J in Stoddart (supra), stating: “We consider that the reasoning of Mansfied J in Stoddart is pursuasive and that it should be followed.”
68. Their Honours also quoted Mansfield J as follows:
“In my judgment, the meaning of the word ‘threat’ as used in the definition of ‘experiencing a severe stressor’ does not require the construction or meaning contended for by the respondent and accepted by the tribunal. The adjectival clause ‘that involved actual or threat of death or serious injury’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the ‘threat’ there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury … that construction would appear to go beyond the purpose of SoPs….”
69. Mr Godwin’s evidence and experiences regarding at least the sampan incident, as recounted above, is neither contrary to proved or known scientific facts, nor otherwise fanciful, and is capable of satisfying the template. Accordingly, the hypothesis regarding the sampan incident as raised by Mr Godwin, is an reasonable hypothesis connecting his PTSD to his war service. The Tribunal accepted that Mr Godwin experienced this severe stressor prior to the onset of his PTSD as diagnosed by his doctors.
applying deledio (supra) – fourth step
70. The fourth step as set out by the Full Court follows:
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.
71. Thus the question is whether the Tribunal is satisfied beyond reasonable doubt that Mr Godwin’s incapacity due to PTSD does not arise from a war-caused disease. If it is not so satisfied, beyond reasonable doubt, the claim must succeed.
72. There was no challenge to Mr Godwin’s credit, and the Tribunal was satisfied that he was a witness of credit who had given a consistent account of his experiences to the doctors who assessed him, and to the Tribunal.
73. The Tribunal accepted that no formal record of either the Gurkha incident or the sampan incident, or indeed the New Guinea incident was put before it, but was also satisfied that Mr Josephs’ research did not extend to all possible sources. Further, in relation to the sampan incident, an American Swift Boat may have been involved, which was likely to mean that Australian records would not be made. The Tribunal was mindful Mr Josephs did not check any American records, or ship’s logs from the archives, and concluded that there may have been no record of the sampan incident, or that it may have been recorded where Mr Josephs research did not extend.
74. The Tribunal then moved to consider Mr Godwin’s reactions and responses particularly to the sampan incident as discussed in the paragraphs above. It noted Mr Godwin’s reactions that he had described consistently to the Tribunal, and to the doctors who examined him and treated him. His evidence was that his life and world had been “bright and bouncy” before the Gurkha incident, and had been different from then, deteriorating further after the sampan incident, with increased drinking. The Tribunal accepted that after the sampan incident Mr Godwin felt shocked and scared, and even though he did not use the particular words of DSM-IV, “helplessness and horror”, was satisfied that he met those tests. Both parties referred the Tribunal to Smith v Repatriation Commission [2002] AATA 526, to which the Tribunal had regard.
75. The Tribunal is bound by the two Federal Court judgments mentioned above (Stoddart and Woodward), and was satisfied that notwithstanding the sampan incident was not recorded as an objective event, Mr Godwin’s reactions to it were such that the sampan incident gave rise to his PTSD.
76. Drs Hayes, Allnutt and Quadrio all diagnosed PTSD.
77. Dr Hayes who considered, when he first treated Mr Godwin in 2000, that Mr Godwin suffered delayed PTSD, referred to the Gurkha and sampan incidents, referring to them as “traumatic experiences” Mr Godwin experienced early in his naval career. He also opined that Mr Godwin coped until he suffered a panic attack after the New Guinea incident in which he thought he would drown.
78. Dr Quadrio’s opinion was that Mr Godwin’s recurrent panic attacks were part of the hyperarousal of PTSD. She recognised Mr Godwin’s extreme reaction to the New Guinea incident to be significant, but considered it one of a number of stressors rather than the definitive one.
79. Even though Dr Allnutt referred to Mr Godwin’s distressing life experiences, (his marriage break-up and loss of a child), he acknowledged that the sampan incident and the New Guinea incident were psychologically disturbing for Mr Godwin, and commented that if the Gurkha incident and sampan incident did occur as described, he would be satisfied that the severe stressor test in the SoP could be met. That was not his call of course, but for the Tribunal to decide.
80. The Tribunal accepted that the template in Instrument No.3 of 1999 had been satisfied, and that Mr Godwin had been subjected to a severe stressor as defined there, in that he witnessed the sampan incident during his operational service. The Tribunal was satisfied that this was the cause of the development of his PTSD.
81. On the evidence of the Applicant, and the medical evidence therefore, the Tribunal could not be satisfied beyond reasonable doubt that Mr Godwin did not witness the sampan incident. Witnessing that event satisfied the definition of “experiencing a severe stressor” in the SoP, and led to the development of Mr Godwin’s PTSD. Accordingly Mr Godwin’s PTSD can be held to be war-caused pursuant to section 9 of the Act.
DECISION
82. The decision under review is varied. The Tribunal determines that Mr Godwin suffers PTSD which is war-caused. The earliest date of effect is 2 April 2002.
83. The decision of the Respondent finding that conductive hearing loss in the right ear and otitis externa of both ears are not related to service is affirmed.
84. The matter is remitted for assessment according to the findings made above.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member Dr M E C Thorpe, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 31 January & 1 February 2005
Date of Decision 8 April 2005
Counsel for the Applicant Ms E Wood
Solicitor for the Applicant Legal Aid Commission
Advocate for the Respondent Mr M Huthnance
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