Harrison-Kyte and Repatriation Commission
[2004] AATA 360
•7 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 360
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/62
VETERANS' APPEALS DIVISION )
Re PETER HARRISON-KYTE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date7 April 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ........(Sgd) O Rinaudo......
Member
CATCHWORDS
VETERANS’ AFFAIRS – pension – post traumatic stress disorder – whether disorder is war or defence caused – causation – incapacity did not arise from a war-caused injury – whether incidents were severe stressors – decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 70, 120, 120A
Parr v Repatriation Commission [2003] AATA 93
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission [2003] FCA FC 160
Menhennett and Repatriation Commission [2001] ATTA 358
Egan and Repatriation Commission [2002] AATA 739
Rice and Repatriation Commission [2003] AATA 143
Repatriation Commission v Budworth [2001] FCA 1421
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR 82
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445REASONS FOR DECISION
7 April 2004 Mr O Rinaudo, Member Background
1. The applicant, Peter Harrison-Kyte, seeks review of a decision of the Repatriation Commission dated 7 December 2000 which refused a claim for pension and treatment for thoracic spondylosis, lumbar spondylosis and post traumatic stress disorder on the basis that they were not due to service. The decision was affirmed by the Veterans’ Review Board on 13 December 2001.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, marked as Exhibit 1 and the following documentary evidence.
Exhibit 2 Statement of PJ Harrison-Kyte dated 7 September 2002
Exhibit 3 Statement of Peter Harrison-Kyte dated 6 November 2002
Exhibit 4 Statement of Kenneth Vandermolen dated 20 January 2003
Exhibit 5 Transcript of VRB Proceedings held on 13 December 2001
Exhibit 6Writeway Report – Commodore PM Mulcare RAN Rtd dated 5 November 2002
Exhibit 7Report of Dr Karl Wiener dated 2 January 1997
Exhibit 8Report of Dr Peter Cotton dated 1 June 1997
Exhibit 9Medical Certificates from Dr Ivan Holm – 6 December 1996 to 12 December 1997
Exhibit 10Letter from Department of Defence dated 16 December 2002 regarding applicant
Exhibit 11Outpatient Medical Record of Mr Kenneth Vandermolen
Exhibit 12Report of Dr Ivan Holm dated 17 January 1997
3. The applicant, Mr Kenneth Vandermolen and Dr Ivan Holm gave evidence for the applicant. Dr Karl Wiener and Commodore Mulcare gave evidence for the respondent.
4. The applicant was born on 22 April 1949. The applicant enlisted in the Royal Australian Navy on 5 January 1965 and was discharged unsuitable on 9 February 1975.
5. The applicant rendered the following periods of operational service:
· 24 April 1966 to 18 May 1966
· 25 May 1966 to 11 June 1966
· 24 February 1972 to 3 March 1972
The applicant also rendered eligible defence service for the period 7 December 1972 to 9 February 1975.
6. The applicant has the following accepted and non-accepted disabilities:
Accepted
· Cervical spondylosis
· Ischaemic Heart Disease
Eligible for treatment (not service related)
· Post traumatic stress disorder
Non-Accepted
· Thoracic spondylosis
· Lumbar spondylosis
· Osteoarthrosis of left knee
· Refractive error
· Eyesight affected by sunlight (Glare)
· Post traumatic stress disorder
Issue
7. The issue before the Tribunal is whether post traumatic stress disorder (PTSD) is war or defence caused within the meaning of section 9 or section 70 of the Veterans’ Entitlements Act 1986 (“the Act”).
8. The applicant contends that the applicant’s PTSD is war or defence caused.
Legislative Framework
· Operational Service
9. Section 9 of the Act details the circumstances in which a veteran’s injuries may be taken to be war-caused. Section 9 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;…”
· Defence Service
10. Section 70 of the Act details circumstances in which the applicant’s injury shall be taken to be defence-caused. Section 70 states:
“70 Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.”
11. Section 120 of the Act is relevant and provides 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.
…
(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.
(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.”
12. The relevant Statements of Principles in this matter in relation to operational service are Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 and for defence service are Instrument No 4 of 1999 as amended by Instrument No 55 of 1999.
· Evidence of the Applicant
13. The applicant confirmed the contents of his statements at Exhibit 2 dated 7 September 2003 and Exhibit 3 dated 16 November 2002. The applicant confirmed that he joined the Navy when he was 15½ years of age. After twelve months of training in Fremantle in Western Australia, the applicant was posted to HMAS Sydney as a Junior Recruit EM. At the time of his posting to HMAS Sydney he was told that the ship would be travelling to South Vietnam loaded with troops and equipment and that “I would be trained in several positions throughout the ship”.
14. The applicant stated he was told that HMAS Sydney was a target. He described his role as an Operation Awkward Sentry in the following terms:
“During my trips to Vietnam I was given several jobs on board, one of which was Operation Awkward Sentry, I was required to work in four hour shifts and due to my age and lack of weapons training I was allowed to carry a weapon but no ammunition. I was also issued with a tin hat, a whistle and a night torch. My duties as an awkward sentry was to keep a constant watch for enemy divers, debris or anything else that could be used to float mines down onto the ships hull. When we arrived in Vung Tau we had been brief [sic] by our officers and they had told us that the Sydney was a prime target for the Viet Cong and the safety of the ship would depend on our observations and action. We had also been informed that several other ships had been damaged whilst in Vung Tau. I became quite anxious in the knowledge that I had so much responsibility and that if the ship were attacked the lives of my mates would be in my hands.”
15. The applicant also described his role in a damage patrol party as follows:
“A second duty I was required to perform was a member of the NBC Damage control party, which was position below decks with ready access to areas below the waterline. Prior to entering harbor [sic] the ship would close to Defence Watch Stations and it is at this time that all watertight doors, hatches and outside ventilation is closed which totally restrict movement throughout the ship. From then on we just sat and waited and prayed that nothing would happen, as we knew that if there was an attack on the ship, where we were stationed there would be little chance of our survival. One could term it as sitting in a tin shed and waiting for it to be pushed over a cliff.
While that ship was at anchor the ships diving team would be continually carrying out necklace searched [sic] of the ships hull looking for mines and explosive which could have been attached to the hull. From inside the ship I could hear scraping noises and one didn’t know if it was a diver or someone placing a mine. During this period I was very edgy and scared. There was also the period where the diver were out of the water and boat parties would circle the ship dropping explosive scare charges against the hull, there was never any warning when this would happen or how many would be dropped. When they exploded the noise was deafening and the whole of the ship’s hull would vibrate. This was a period of time when the real thing struck home, and there were many times that I felt so scared that I retreated into a dark corner and cried. At sixteen and a half I found it hard to come to terms with where I was and what was going on around me. I [sic] was times like that I wanted to be home in Brisbane with my parents.”
16. The applicant also gave evidence about his role in the 1974 Brisbane floods. The applicant reports on this incident in Exhibit 3 as follows:
“When the floodwaters were at its peak and the river was running at it fastest there was a danger the Heavy Landing craft Labuan, and I believe it was Tarakan breaking away from the wharf the same way that the Gyunda did? It was the decision of our superiors to tie the landing craft to the wharf, this involved myself and others going down under the wharf into the river and while under the wharf the crews on the boats would pass steel wire ropes to us. We in turn would pass the wire around pylons and pass it back to the crew. This continued for some time until the boats were secure. This had to be done as if the boats let go and tried to make a break for Moreton Bay they would have almost certainly become wrecked on the banks of the river and there would have been a tragic loss of life.
All the time we were in the water we were up to our chest in rubbish, which was being swept down stream and on occasions we would be hit by unknown objects in the water, which would knock us off balance. I feel I must explain the planks under the wharf were only about 18 inches wide and ran the full length of the wharf, while we were standing on them we could not see them. The only safety device we had was a rope tied around our waist. Although we had these lines around our waist, they in fact at times would collect debris and make our movements more difficult due to the drag. Again due to the fast flow of the river, if one of us was to be washed away, to retrieve us would have been impossible and we could/would have been drowned.
We were informed that there were 44-gallon drums of explosive substances being washed down the river that would explode when in contact with water. We were instructed to keep watch for these drums and if sighted we were to fend them away from the craft. Due to their being no lighting on the wharf at night the task of identifying any objects was nearly impossible.
During the course of the floods and being stationed at HMAS Moreton, I was placed in several other like situations that placed me in extreme danger. As a naval trained person I carried out my allotted tasks to the best of my ability. However, I was not trained as a ship’s diver and I should not have been sent into the water, however I put my own safety at risk to help protect others.”
17. He confirmed that whilst he was in the water under the wharf at HMAS Moreton he had no support. He said he could have been “whisked away” by the force of the water.
18. The applicant also described an incident in May 1974 when he was serving on HMAS Melbourne. He said that a jet had a flame-out and crashed. He said he had worked all weekend with the pilot who was the duty officer. The applicant said he was the quartermaster. The applicant said the pilot was to marry the next weekend. He said he felt very sad about this incident.
19. The applicant confirmed that he never saw the body parts. However, it was common knowledge that the only part found was the pilot’s head which was still in the helmet.
20. In 1968 the applicant said his mother passed away. He said the Navy refused to let him go home. He was upset by this. Mr Harrison-Kyte said he did not get home for his mother’s funeral in July of 1968 and he said he did not get home until September. He said the family was not at home when he got there and he had to find them.
21. The applicant confirmed he was discharged “unsuitable for further naval service”.
22. The applicant stated he regarded his final medical as a “tick and flick” exercise.
23. Under cross-examination the applicant confirmed that he joined the Queensland Police Service in 1976. He said he was still a member of the Queensland Police Service. He said he had been on sick leave since April this year. He said he had quite a lot of sick leave available. He said the Police Service had told him he was unfit for duty. The applicant said he had the option to retire at 55 years. He had thought he would go through to 57 although he may not be able to do that now.
24. The applicant confirmed in cross-examination that in 1996 whilst in Vietnam he had been told of the scare charges and he said they knew they were going to set them off.
25. The applicant acknowledged the exchange between himself and the Veterans’ Review Board at page 5 of the Transcript where, when asked the question “You knew what they were?” Mr Harrison-Kyte replied:
“Well, we knew what the bangs were.”
26. The applicant confirmed he had been in the Police Force for 26 years. He confirmed he had had anger problems but he had no idea what was causing them. He confirmed he had had stress since incidents in the police force involving a stolen gun and wheel clamp incident. He was a police diver from 1981 to 1986 and had recovered a number of bodies in the course of his service as a police officer.
27. The applicant was referred to the report of Dr Cotton, and particularly page 4, in which the doctor reported:
“Thus, Mr Harrison-Kyte reported experiencing the ‘sudden onset’ of anger and psychological distress from 30 October 1996.
Mr Harrison-Kyte did not spontaneously describe experiencing or being exposed to any traumatic events or being troubled by any trauma-related phenomena.
Subsequently, in response to more detailed questioning he reported than he had been informed by WorkCover that since the Police Service had only been covered by the Act from 1991, he needed to compile a list of all of the traumatic events he had been exposed to since that time.
Mr Harrison-Kyte said that he had seen more death with the Police Service that most soldiers had seen in Vietnam.”
28. In re-examination Mr Harrison-Kyte confirmed that the Police Service cardiologist has determined that he is unfit to continue in the Service. He said this decision is currently with the Q-Super Board.
· Evidence of Kenneth Vandermolen
29. Mr Vandermolen gave evidence and confirmed the matters set out in his hand-written statement at Exhibit 4 and the medical report at Exhibit 11. In his statement he states:
“I recall an incident onboard HMAS Melbourne in 1974. This incident resulted in the death of a Naval Pilot in a Skyhawk crash. I believe, from memory, his name was McMillan.
I recall he crashed his plane at high speed into the ocean. I recall the ship’s boat crew being despatched to search for his remains. I was not directly involved with that retrieval.
I recall that all that was found was his helmet which still contained his head. I believe no other parts of his body were recovered.”
· Evidence of Commodore Mulcare RAN Rtd
30. Commodore Mulcare RAN Rtd gave evidence. Commodore Mulcare confirmed the contents of his report at Exhibit 6 and in particular paragraph 9 on page 3 relating to scare charges where he said:
“The scare charge used was either a one and a quarter pound or a one pound charge usually fitted with a percussion fuse. The instructions for use were that they should be thrown 20 feet clear of the ship or boat and they exploded at a depth of 6-7 metres. Scare charges were and are a major deterrent as the explosion underwater caused death or serious injury to divers in the near vicinity and disorientation at much greater ranges. The sound of a scare charge explosion varies with, amongst other things, distance from the ship, depth of water, depth of explosion and the characteristics of the seabed. The sound of a distant explosion, i.e. from a scare charge thrown from a boat 70 to 100 metres upstream of the ship, was muffled and was generally heard as a loud thud in compartments below the waterline. However, explosions nearer the ship were much louder and sharper in these compartments and could be frighteningly loud if they exploded close alongside, particularly if they were unalerted.”
31. Commodore Mulcare confirmed that HMAS Sydney would have been unloading from both sides. He said he could not be sure about this but he thought that would be the case.
32. Commodore Mulcare confirmed that in his view the events described by the applicant at HMAS Moreton would have been dangerous. He said that the applicant should have had a life vest and a tethering system.
33. He confirmed that HMAS Torrens and HMAS Sydney would both leave the harbour and go to sea for safety at night. Commodore Mulcare confirmed that the scare charges would be used at the rate of about 6 to 8 per hour down to 1 to 3 per hour when the tidal flow was stronger (above 3 knots). He confirmed that Operation Awkward State would have been in place whilst the ship was in the harbour. He also confirmed that the ship would have been at 2Y status while in the harbour which effectively meant that attack was possible or the ship was in dangerous waters and that the openings above and below the waterline would have been closed.
·Evidence of Dr Holmes
34. Dr Holmes, psychiatrist, gave evidence and confirmed his reports at T28 dated 20 November 2000, T55 dated 17 January 1997 and T57 dated 23 March 1997. He confirmed that he first saw the applicant in November 1996. He confirmed that the applicant displayed symptoms of depression, anxiety and post traumatic stress disorder. He said in his view the applicant’s stressor dated back many years. He said he would have developed symptoms as early as 1966/67. He confirmed that his post traumatic stress disorder may have been caused as a result of the cumulative effect of stressors and that it had become worse over time with further stressors. He confirmed that anxiety could lead to a heart condition.
35. Under cross-examination, Dr Holmes confirmed that people can, under certain specific conditions, work even though they have post traumatic stress disorder. He said they suppress the symptoms. They do this by keeping the mind occupied. He confirmed that almost certainly the applicant had had post traumatic stress disorder for a long period.
· Evidence of Dr Karl Wiener
36. Dr Karl Wiener, psychiatrist, gave evidence and confirmed his report at Exhibit 7 dated 2 January 1997. Dr Wiener confirmed the comments at page 4 of his report that:
“Mr Harrison-Kyte stated that he regularly recalls his dreams and frequently his dreams are disturbed. He reported that he is reliving fatal accidents in dreams and in one dream he was frightened by police action against him.”
37. Dr Wiener confirmed he had only seen the applicant for two hours some six years ago. He said it was very difficult to draw conclusions. Dr Wiener said he had seen the applicant for work purposes to report to WorkCover.
38. Dr Wiener considered that a major problem for the applicant was his not being able to go to his mother’s funeral. He said it was very difficult to determine cause. He noted the comments on page 9 of his report that:
“In interview he showed resentment towards the RANS’s decision denying permission to attend his mother’s funeral while stationed overseas. Furthermore, he expressed resentment and anger for the way the Police Service treated both matters of investigations mentioned above.
It is my opinion there are two main factors that contributed to Mr Harrison-Kyte’s current emotional situation. Both factors are work-related. The first contributing factor relates to ongoing stresses associated with the two investigations. This is particularly stressful to a person with strong sense of self discipline and less flexible attitudes. This situation was further compounded by his perception that:
· the CJC investigation was very lengthy given the matter
· the process was unsatisfactory
· the uncertainty of a potential second inquiry.
It seems that the handling of both incidents have damaged Mr Harrison-Kyte’s relationship with the Police Service.
The second factor relates to his perception of the Police Service regarding his professional work. Mr Harrison-Kyte believes that the Police Services have not acknowledged his achievements adequately. It is this lack of acknowledgement and the prolonged stress experienced while investigated that raises self doubt and a re-evaluation of his professional performance of past incidents. In this self evaluation Mr Harris-Kyte questions his decision making and his professional performance. As part of the self evaluation he recounts some of the more major traumatic rescues and potentially dangerous situations that have added to his distress.”
Submissions
39. Ms Carter-Nicoll, Counsel for the applicant, submitted that the applicant is suffering from post traumatic stress disorder. The SoP relevant to the application for post traumatic stress disorder are Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 for stressors incurred on operational service, and Instrument No 4 of 1999 as amended by Instrument No 44 of 1999 for stressors incurred on eligible service.
40. Ms Carter-Nicoll submitted that the applicant was exposed to severe stressors during the applicant’s operational and eligible service in the Royal Australian Navy. In particular, the applicant experienced severe stressors:
“through experiencing or being confronted with the events of a ship being declared to be in a state of NBCD State 2Y; crew operating pursuant to Operation Awkward as the ship was at danger of attack by enemy divers, floating mines, mortar or rocket attack while crew manned armed Bofors and boats patrolled in the vicinity of the ship towing anti-swimmer devices (i.e. grappling hooks and bared wire) and the use of scare charges involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity: Stoddart v Repatriation Commission [2003] FCA 3334 at paragraph 55.”
41. Ms Carter-Nicoll also submitted that with respect to eligible service, the applicant experienced a severe stressor by witnessing on radar an aircraft flame-out and crash at sea. It was further submitted that the applicant suffered a severe stressor during the five days of the Brisbane floods.
42. Ms Carter-Nicoll also referred to the decision of Parr v Repatriation Commission [2003] AATA 93 at paragraph 74 where it was reported:
“It was also suggested by the Respondent that the Applicant’s experiences in Vung Tau posed no real threat and Mr Modder referred to the historical report (Exhibit R2) to the effect that both of the Applicant’s trips to Vung Tau were without incident. The Tribunal notes, however, that the report also states that “(t)he threat of attack by swimming saboteurs or floating mines was the primary security concern of ships in Vung Tau Harbour” and that although “these threats did not materialise over the years RAN ships visited Vung Tau … they were always taken very seriously, and ships assumed Operation Awkward State 2 as soon as they anchored”. The Tribunal also notes the report advises that “(a) broadcast warning on board before each scare charge deployment was not possible…”. The Tribunal considers that “previous training, briefings and announcements in Daily Orders” would not prevent fear and apprehension of the kind attested to by the Applicant in the face of unannounced scare charges which were, according to the report, “frighteningly loud”. The Tribunal is therefore satisfied that the Applicant’s experiences of entering Vung Tau and immediately assuming Operation Awkward State 2, with all that that entailed, including scare charges, amounts to an “identifiable occurrence that evokes feelings of substantial distress” within the meaning of the SoP.”
43. Ms Carter-Nicoll also referred to paragraph 80 of that decision which states:
“The Tribunal considers that the evidence in the historical report (Exhibit R2) that ‘(t)he threat of attack by swimming saboteurs or floating mines was the primary security concern of ships in Vung Tau Harbour’ and that although ‘these threats did not materialise over the years RAN ships visited Vung Tau … they were always taken very seriously, and ships assumed Operation Awkward State 2 as soon as they anchored’, points to the existence of a threat of serious injury or death. It follows that there is material before the Tribunal which points to the Applicant having experienced a severe stressor within the meaning of the SoP.”
44. Ms Carter-Nicoll also referred to the decision of Stoddart v Repatriation Commission [2003] FCA 334 and in particular the subject of test as set out in that decision. Ms Carter-Nicoll noted that Stoddart had been confirmed by the decision of Woodward v Repatriation Commission [2003] FCA FC 160.
45. Ms Carter-Nicoll submitted that the applicant, who was 17 years of age at the time, was below decks when the scare charges were detonated.
46. Mr McAninly, for the respondent, submitted that this application was distinguishable from the Stoddart situation because on this occasion the applicant was aware of the scare charges and for what they were used. Mr McAninly therefore submitted that the applicant was not exposed to a stressor which invoked fear, helplessness or horror.
47. Mr McAninly noted that the applicant stated he had been depressed in the aftermath of the January 1974 Brisbane floods. It was submitted that the applicant stated his depression was not helped when he witnessed the flare-out and crash of an A4 Seahawk aeroplane which he was tracking on radar. It was submitted that the applicant stated he was depressed but he did not state that his response involved fear, helplessness or horror. It was submitted that the applicant’s response, therefore, does not meet the necessary criteria for post traumatic stress disorder.
48. Mr McAninly further submitted that the applicant’s description of the remains of a pilot being brought on board HMAS Melbourne did not accord with facts described and accepted by the Administrative Appeals Tribunal in the matter of Menhennett and Repatriation Commission [2001] AATA 358. It was submitted that the applicant’s response to the severed head had already been documented as not being a severe stressor in the matter of Egan and Repatriation Commission [2002] AATA 739 and further that a sighting of a human hand was not seen as a severe stressor in the matter of Rice and Repatriation Commission [2003] AATA 143.
49. Mr McAninly submitted that the applicant did not raise either of these incidents before the Veterans’ Review Board hearing. Mr McAninly submitted that the applicant’s response did not involve fear, helplessness or horror and therefore could not meet the necessary criteria for post traumatic stress disorder.
50. With respect to eligible service, Mr McAninly submitted that the applicant did not experience fear, helplessness or horror with regard to the events described by the applicant surrounding the 1974 Brisbane floods. In this regard Mr McAninly made the following submissions:
“The respondent notes that a necessary factor for post traumatic stress disorder is factor 2(c) of the Statement of Principles Instrument No 4 of 1999, which states:
‘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 trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of effort (eg, unable to have loving feelings);
(vii)sense of foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span).
The respondent notes that the applicant has been a member of the Queensland Police service since 1976 and did not, in his own admissions, have any problems in service until the enquiries regarding the ‘wheel clamping’ incident and the ‘missing pistol’ incident. The respondent further notes that Mr Harrison-Kyte spent 6 years as a Police Diver and as such the respondent submits that factor 2(C)(ii) of the above Statement of Principles is not met.”
51. In relation to the death of the applicant’s mother, Mr McAninly submitted that the applicant’s mother died in July 1966 outside of a period of operational or eligible service.
52. Mr McAninly noted that both Dr Cotton and Dr Wiener referred to this incident as causing the applicant significant distress and continues to upset the applicant. In Commenting on Mr Harrison-Kyte’s police service, Mr McAninly submitted as follows:
“The respondent notes that the applicant is claiming that the service in the Queensland Police Service has aggravated the post traumatic stress disorder suffered on service. The respondent notes that for ‘clinical worsening of post traumatic stress disorder’ that the condition must exist initially. The respondent notes that the applicant successfully completed 10 years Naval Service and has been in the Police Service since 1975 and had no problems until the incident on Police service in 1996. The respondent therefore submits that the applicant was not suffering from post traumatic stress disorder prior to 1996 and therefore the condition could not be 'clinically worsened’ by the 1996 incidents.”
Discussion and Decision
· Diagnosis
53. In Repatriation Commission v Budworth [2001] FCA 1421 and Benjamin v Repatriation Commission [2001] FCA 1879 the Full Federal Court held that as a first step it was necessary to consider the diagnosis of the disease or injury and then consider causation. Different standards of proof applied to both. When determining whether a claimed injury or disease exists, that issue must be decided to the “reasonable satisfaction” of the decision maker in accordance with section 120 (4) of the Act.
54. Sections 120(1), (2), (3) and 120A(3) assume the existence of a relevant injury or disease and provide a standard of proof for the determination of whether that injury or disease was war caused (satisfaction beyond reasonable doubt that there is no sufficient ground for making that determination).
55. In this case, based on the evidence of Dr Holms and Dr Wiener, the Tribunal is reasonably satisfied that the applicant is suffering from post traumatic stress disorder.
· Causation – Operational Service
56. In considering whether the applicant’s post traumatic stress disorder is war-caused, the Tribunal must have regard to the steps to be followed in cases such as this as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 where the Full Court (Beaumont, Hill and O’Connor JJ) said at 97-98:
“…we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) 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 that person 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
57. With respect to Step 1 of the Deledio steps, the Tribunal must, having regard to all of the material, determine whether such material points to an hypothesis connecting the injury with the circumstances of the particular service rendered by the person. In this case the hypothesis is that the applicant suffered severe stressors during operational service which resulted in his post traumatic stress disorder. Accordingly, the Tribunal is satisfied that an hypothesis exists.
58. Step 2 of the Deledio steps requires that the Tribunal determine whether there is in force a Statement of Principles determined by the Authority under section 196B(2) or (11) of the Act. In this case, the relevant Statement of Principles is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. Accordingly, the Tribunal is satisfied that step 2 is met.
59. Step 3 of the Deledio steps requires that the Tribunal must form the opinion as to whether the hypothesis raised is a reasonable one. The hypothesis will be reasonable if the hypothesis fits the template to be found in the Statement of Principles. The hypothesis must therefore contain one or more of the factors contained in the Statement of Principles.
60. In this case the factor relied on is factor 5(a) which requires that the applicant must have experienced a severe stressor prior to the clinical onset of post traumatic stress disorder. In considering step 3 the Tribunal notes the explanation of Finn J as to the proper operation of step 3 in Harris v Repatriation Commission (2000) 31 AAR 270 at 282:
“It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that ‘one of the disputed facts happens also to be a component of an SoP’.”
61. In Arnott v Repatriation Commission(2001) 32 AAR 445 at 452-453 the Full Federal Court, at paragraph 27, said:
“However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the ‘particular claim’ fits the ‘template’ laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage.”
62. So, did the applicant suffer a severe stressor as required by factor 5(a) of the Statement of Principles during operational service or defence service? The definition of experiencing a severe stressor during operational service is set out in Instrument No 54 of 1999 for Operational service and says:
“‘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;”.
63. In this case, the applicant submits that the severe stressors experienced by him during operational service were the discharge of scare charges whilst he was in Vung Tau Harbour.
64. The Tribunal is satisfied that the material before it points to the hypothesis being consistent with the template found in the SoP and accordingly must be regarded as reasonable.
65. Having found that the hypothesis is reasonable the Tribunal must now move to step four and determine whether it is satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury.
66. As to operational service, did the applicant experience an event or events that involved “actual or threat or serious injury, or a threat to the person’s…physical integrity”, during operational service in Vung Tau Harbour?
67. In considering this issue the Tribunal has had regard to the cases referred to by the representatives for the parties in submissions.
68. In Stoddart v Repatriation Commission [2003] FCA 334, his Honour Justice Mansfield held:
“...the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”
69. In Woodward v Repatriation Commission [2003] FCAFC 160 the Full Federal Court considered Stoddart and said:
“We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.”
70. In Repatriation Commission v Stoddart [2003] FCAFC 300, the Federal Court, on appeal by the Repatriation Commission from orders made by his Honour Justice Mansfield, clearly accepted the approach taken by Mansfield J (and adopted by the Full Court in Woodward’s case) in respect of the meaning of “threat” as used in the SoP definition. Furthermore, the Full Court agreed with the dictionary definition of threat adopted by Mansfield J namely:
“an indication of probable evil to come; something that gives indication of causing evil or harm”, and furthermore stated that the description of “a risk of death”, “can be used appropriately to describe a clear and present danger of death and a mere possibility of death”.
71. Also significant is the Full Court’s observation in addressing what can be described as routine normal service duties –
“that events that are objectively ‘neutral in character’ may, nonetheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time.”
72. In the decision of Parr v Repatriation Commission (supra), the Tribunal found that:
“ It was also suggested by the Respondent that the Applicant's experiences in Vung Tau posed no real threat and Mr Modder referred to the historical report (Exhibit R2) to the effect that both of the Applicant's trips to Vung Tau were without incident. The Tribunal notes, however, that the report also states that "(t)he threat of attack by swimming saboteurs or floating mines was the primary security concern of ships in Vung Tau Harbour" and that although "these threats did not materialise over the years RAN ships visited Vung Tau ... they were always taken very seriously, and ships assumed Operation Awkward State 2 as soon as they anchored".. The Tribunal also notes the report advises that "(a) broadcast warning on board before each scare charge deployment was not possible...". The Tribunal considers that "previous training, briefings and announcements in Daily Orders" would not prevent fear and apprehension of the kind attested to by the Applicant in the face of unannounced scare charges which were, according to the report, "frighteningly loud". The Tribunal is therefore satisfied that the Applicant's experiences of entering Vung Tau and immediately assuming Operation Awkward State 2, with all that that entailed, including scare charges, amounts to an "identifiable occurrence that evokes feelings of substantial distress" within the meaning of the SoP.”
73. The Tribunal notes the submissions of the applicant, particularly with respect to the comments in the decisions of Stoddart v Repatriation Commission and Parr v RepatriationCommission. However the Tribunal is satisfied that in this case the applicant was aware of what scare charges were and when they were going to be used.
74. The Tribunal also notes the evidence of Commodore Mulcare that when unloading in Vung Tau Harbour, HMAS Sydney would have been unloaded from both sides and therefore scare charges, if used, would have been used well away from the ship itself.
75. Insofar as the medical evidence is concerned, Mr Harrison-Kyte seems preoccupied with events that occurred during his some 26 years in the police service. This is understandable as he was seeing a number of doctors with respect to his claim for stress at work.
76. However, the doctor’s reports are illustrative of the effect of the events which occurred during the applicant’s operational service and their effect on him. For instance, he told Dr Wiener who reports in his report of 2 January 1997 that:
“Mr Harrison-Kyte stated that he had been working for 20 years with the Queensland Police. Although work practices have changed over the years Mr Harrison-Kyte said that he could recall numerous incident where he was exposed to dangerous situations as part of his police work, or where he witnessed injured or killed victims as a result of a violent crime, suicide or motor vehicle accidents (MVA). Mr Harrison-Kyte added that in the past it was also the police officer’s job to ‘clean up’ the incident scene.
Mr Harrison-Kyte became teary in the interview when he briefly described incidents about his police work like the recovery of bodies, especially the bodies of children as part of his work as a Police Diver. Although he could not attribute a specific traumatic incident to his current psychological condition, he believes that the accumulative effects of several incidents negatively contributed to his current psychological condition.”
77. Dr Wiener reported:
“Mr Harrison-Kyte regularly recalls his dreams and frequently his dreams are disturbed. He reported that he is reliving fatal accidents in dreams and in one dream he was frightened by police action against him.”
78. Dr Wiener at page 9 of his report says:
“In contrast Mr Harrison-Kyte expressed great resentment towards decisions made by authority. In interview he showed resentment towards the RAN's decision denying permission to attend his mother’s funeral while stationed overseas. Furthermore, he expressed resentment and anger for the way the Police Service treated both matters of investigations mentioned above.”
79. Dr Wiener confirmed that Mr Harrison-Kyte the two main factors contributing to Mr Harrison’s current emotional situation were two ongoing investigations and that these were compounded by the time taken by the CJC to investigate an unsatisfactory process and the uncertainty of a potential second inquiry.
80. Whilst Dr Holm refers to the applicant recounting that he felt constant anxiety, fear and hyper-vigilance whilst in Vietnamese waters, he goes on to say in his report of 17 January 1997 that:
“As a Police diver he described traumas such as retrieving the body of a drowned child from a water hole and the body of a 2 year old child from under a pontoon. Other instances in the police force include witnessing the trauma of the bodies of people run down by trucks, the aftermath of suicides with bodies with heads blown off by a shot gun and the result of a hanging.
In 1977 he had to attend to a man who had a leg cut off after being hit by a car while riding a pushbike. In 1978 he describes the traumatic witnessing of a man incinerated in a car after a car crash.
More recently over the past two years he has been the subject of further stress. He was investigated by the C.J.C. for misconduct which took an exteremely long time to be resolved before he was finally exonerated last year. In February 1996 an incident occurred where a young constable’s service revolver was stolen from a police station at Oxley when the station was used after hours by the C.I.B. to conduct an interview. Mr Harrison-Kyte has been very stressed by the investigation of this occurrence.”
81. Dr Cotton reported on 1 June 1997 that:
“Significantly, Mr Harrison-Kyte reports that his mother died while he was at sea on a seven month strategic reserve exercise. He said that he was aged 18 at the time. He said that he was informed about his mother’s death but the navy would not allow him to return home to be with his family and attend the funeral. He said that he was extremely distressed and disgruntled over this. Mr Harrison-Kyte has evidently continued to harbour considerable unresolved resentment and grief feelings over this incident.”
82. Dr Cotton also reported that:
“Mr Harrison-Kyte said that he had seen more death with the Police Service than most soldiers had seen in Vietnam.
He said that he often ruminates over the loss of his mother and the lack of support his employer had shown at that time.
He said that during his service with the Police, he was able to recollect memories of attendance at various road accidents and being exposed to “people mangled on the roads”, “dragging a dead two year old child out of a dam”, having to “clean up the aftermath of messy accidents” and various other incidents.
Mr Harrison-Kyte said that prior to the onset of his current difficulties, he had not ruminated on these past negative events and had been able to keep them in the back of his mind.”
83. The medical evidence supports the view that the applicant did not regard the scare charge event as being significant as compared with events that occurred during his police service.
84. Accordingly, the Tribunal accepts that subjectively Mr Harrison-Kyte may have experienced fear as a result of the scare charges being let off. However, looking at the situation objectively, having regard to the traumas he was subjected to in the Police Service, the Tribunal is satisfied that the event did not constitute a severe stressor as required by the SoP.
85. Accordingly, as far as operational service is concerned the Tribunal is satisfied beyond reasonable doubt that the applicant did not experience a severe stressor in terms of the relevant SoP and therefore determines that the hypothesis of the applicant is not reasonable. Therefore, insofar as operational service is concerned the claim must fail.
Eligible Defence Service
86. For eligible defence service the test is that of reasonable satisfaction as set out in section 120(4) of the Act.
87. The applicant says that the severe stressors he experienced while on defence service were, witnessing a flame-out of an aircraft on radar and hearing of the severed head inside a helmet of a pilot who had crashed and being involved in dangerous situations in the 1974 Brisbane flood.
88. The applicant also says he was upset when the Navy would not allow him to travel home to his mother’s funeral. It is evident this event features in a number of the medical reports. However, the applicants mother died in 1968. Whilst the Tribunal accepts that this would have been an event that was most distressing to the applicant the death of the applicant’s mother occurred in 1968 which is outside the applicant’s period of operational and defence service.
89. With respect to defence service there are two stressors relied on. The first is the A4 Skyhawk aircraft crash which the applicant tracked on radar and the subsequent information that the pilot’s helmet had been discovered with the severed head of the pilot still in it.
90. The Tribunal is not satisfied this event would have constituted a stressor as required by the SoP. The Tribunal relies on the decision of Egan and Repatriation Commission [2002] AATA 739 where it was held that:
“The applicant's experience in relation to the severed heads on the wharf is also something that is likely, as it did in this case, to cause a very emotional response but once again that was a response that was purely subjective and there was no objective threat to the applicant's wellbeing other than his immediate reaction of vomiting at the sight of the severed heads.”
91. In this case of course the applicant did not see the head at all. Accordingly, the Tribunal is reasonably satisfied that the incident did not evoke an objective feeling of a threat to the applicant’s wellbeing. The Tribunal is therefore satisfied on the balance of probabilities that the event described by the applicant does not constitute a severe stressor as required by the relevant statement of principles.
92. In regard of the Brisbane flood incident referred to by the applicant the Tribunal notes that the comments of the Veterans’ Review Board (“VRB”) reflect the view of the Tribunal. They said:
“38. …the Board noted that Mr Harrison-Kyte had a safety harness around him when he walked under the wharf and, although this incident no doubt caused him some anxiety, there is no suggestion that it exposed him to the threat of death or serious injury.
39. During the five days of the Brisbane floods, Mr Harrison- Kyte perceived that there was a threat to his life because of the stories and hearsay of others. There was nothing in the material today which would allow the Board to conclude, on the balance of probabilities, that Mr Harrison-Kyte had been exposed to a life threatening situation.
40. For the reasons given above, the Board finds that the evidence raises none of the factors set out in the Statement of Principles in this case. The Board is therefore reasonably satisfied that the material before it does not raise a connection between the veteran’s post traumatic stress disorder and his defence service as required by the Act.” (See T68)
93. No evidence was presented to the Tribunal on this issue that was not before the VRB. Accordingly the Tribunal adopts the reasoning of the VRB and finds that it is satisfied on the balance of probabilities that the Brisbane Flood incident in 1974, as reported by the applicant does not constitute a severe stressor as required by the Statement of Principles.
94. In the circumstance the Tribunal affirms the decision under review.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sam Appleton
Associate
Date/s of Hearing 28 August 2003
Date of Decision 7 April 2004Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Veterans' Support and Advocacy Service Australia
For the Respondent Mr D McAninly, Departmental Advocate
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