Haughey and Repatriation Commission
[2005] AATA 189
•8 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 189
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/1005
VETERANS’ APPEALS DIVISION )
Re JACK HAUGHEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 8 March 2005
Place Brisbane
DecisionThe Tribunal sets aside the decision under review and substitutes the decision that the applicant’s PTSD is war and defence caused with effect from 31 October 1996. The Tribunal remits the matter to the respondent for the assessment of the rate of pension payable.
..................[Sgd].......................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – war-caused injury during eligible service – whether applicant suffers from post traumatic stress disorder or other psychiatric condition – whether applicant’s service was the cause of clinical worsening of post traumatic stress disorder – diagnosis of post traumatic stress disorder accepted – post traumatic stress disorder worsened by severe stressors experienced during relevant service – decision under review set aside and substituted accordingly.
Veterans’ Entitlements Act 1986 ss 6, 7, 9, 70, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Repatriation Commission v Hill [2002] FCAFC 192
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 75 ALD 420
Byrnes v Repatriation Commission (1993) 177 CLR 564
Hatherall and Repatriation Commission [2002] AATA 77REASONS FOR DECISION
8 March 2005 Ms M J Carstairs, Member 1. This is an application by Jack Haughey for review of a decision made by the Veterans’ Review Board (the VRB) on 27 September 2000, rejecting the applicant’s claim for pension. The applicant originally claimed for post traumatic stress disorder (PTSD) (amongst other medical conditions which are no longer in issue) on 31 January 1997. However both the Repatriation Commission (the respondent) and the VRB have treated his claim as relating to the psychiatric condition major depressive disorder. The applicant considers this is incorrect and that, properly understood, his claim for PTSD should be accepted as related to his service in the Australian Navy (the navy) because his PTSD was aggravated or worsened by navy service.
2. At the hearing on 18 August and 16 November 2004 the applicant was represented by Mr A Harding of counsel instructed by Gilshenan and Luton solicitors. The respondent was represented by Mr J Stoner.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) as well as exhibits marked A1-A16 for the applicant and R1-R3 for the respondent.
BACKGROUND
4. The applicant is aged 59 years. He served for twenty years in the navy after enlisting in 1961 at the age of seventeen. The applicant was on board HMAS Melbourne when it was involved in the collision with HMAS Voyager in February 1964 (the Voyager collision). This part of his service is not covered by the Veterans’ Entitlements Act 1986 (the Act).
5. It is not disputed by the respondent that the applicant has periods of both war service and defence service, which are two kinds of relevant service for purposes of the Act and each attracts a different standard of proof in deciding a person’s entitlements to obtain benefits under the Act.
6. The applicant’s service in the Far Eastern Strategic Reserve and in Vietnam is war service. He had four periods of service with the Far Eastern Strategic Reserve during 1966: 15 March to 30 April; 10 June to 13 June; 20 June to 30 June; and 21 July to 26 July. He had service in connection with the Vietnam War in the periods 5 June 1966 to 10 June 1966; 20 September 1971 to 16 October 1971; 26 October 1971 to 18 November 1971; 24 November 1971 to 17 December 1971; 14 February 1972 to 9 March 1972; and 1 November 1972 to 30 November 1972. All these periods are operational service in accordance with s6D(1)(a) and 6C of the Act and are eligible war service within the meaning of s7 of the Act.
7. The applicant’s period of eligible defence service was from 7 December 1972 until 13 March 1981 when he left the navy.
8. In his claim for PTSD in answer to a question on the claim form: How did service cause this disability? the applicant referred to the Voyager collision. In the reasons for decision when refusing the claim the respondent’s delegate stated that the Voyager collision occurred in a period of non-eligible service which he said was not covered by the Act.
9. The issues for the Tribunal to determine are the diagnosis of any psychiatric condition from which the applicant suffers, and whether the condition is related to his period of eligible war service or defence service.
EVIDENCE
10. The applicant’s evidence was given orally and in a number of written statements and supporting diagrams. In a statement dated 20 August 2001 (exhibit A1) the applicant acknowledged that his problems with PTSD started with the Voyager collision. However he said his symptoms were worsened significantly by his experiences during his subsequent eligible service.
11. The applicant has referred to a large number of stressful or distressing incidents related to his navy service during the course of the review of his claim. A number of these incidents were not relied on at the hearing, although they had been mentioned to the medical practitioners who had examined the applicant and in additional materials provided to the VRB. The applicant explained in his statement dated 20 December 2002 (exhibit A3) that some incidents that he had mentioned to doctors had been stressful, but not severely stressful. The applicant said that the most significant incidents were the following:
· HMAS Sydney, returning from Vietnam in October 1971, was caught in heavy weather in the Great Australian Bight and nearly rolled (the violent storm incident). During the storm, a loud cracking noise was heard and a 20-ton container broke free of its shackles and took several hours to resecure.
· During a night boarding and interception exercise on HMAS Derwent in March 1966, a machine-gunner prematurely opened fire, spraying the port side with live 50mm ammunition including tracer shells, and sending approximately 30 of the ship’s company, including the applicant, rushing for cover (the machine gun incident).
· A liquid oxygen fire, which had the potential to blow up the ship, broke out on board HMAS Melbourne (the liquid oxygen incident)
· Two Indonesian patrol boats positioned themselves on either side of HMAS Derwent in June 1966 and locked their missile control radar on the ship, which went to action stations and locked its main gun on one patrol boat and pointed surface to air missiles at the other, and a stand-off ensued until the two boats abruptly broke off and sped away (the Komar boats incident)
12. In a written statement dated 20 December 2002 (exhibit A3) the applicant said that the four incidents caused him great distress at the time of their occurrence and continue to trouble him in nightmares. He said that during the violent storm and liquid oxygen incident he experienced fear for his own life and that of others. He said that the stress he endured in those incidents coupled with the direct responsibility he had because he was Damage Control Officer of the Watch (DCOW) during those two incidents greatly aggravated my condition.
13. In Attachment 3 to a research report dated 11 June 2003 undertaken by Mr P Mulcare, Commodore RAN (Ret) (exhibit R1) the duties of the DCOW were stated to include monitoring the watertight integrity and damage control state to the ship, including authorising the opening of watertight doors and hatches and directing activities of damage control patrols or fire parties. The DCOW was responsible for keeping command informed of incidents threatening the ship’s integrity.
14. In his written statement dated 27 September 2002 (exhibit A2) the applicant said that he suffered from nightmares after the violent storm incident and had trouble sleeping. He said he would wake trembling and sweating and he consumed alcohol to control his stress.
15. The applicant said that during his service at times he would recall the Voyager collision, but his symptoms of stress only became a serious problem in about 1971. He said prior to that time he did not consider he had a psychiatric problem and had successfully pursued his career in the navy, had married, and was generally coping well. He stated that he put up with problems until about 1976 when he sought medical help.
16. In material dated 24 July 2000 (T5) and in his written statement dated 27 September 2002 (exhibit A2), the applicant said despite having a concern that his seeking treatment for stress would be frowned upon in the navy environment at the time, he went to a joint services medical officer who treated him for “battle fatigue”. He said he was referred to Duntroon Miliary Hospital where he was taught relaxation techniques by a nurse who had experience with “battle fatigue”. He referred to his service medical documents dated 1 and 4 November 1976 (exhibit A13) as relating to this medical treatment.
17. The applicant identified the machine gun incident as being a boarding party exercise which was an entry dated 9 March 1966 at 1800hrs – 2000hrs in HMAS Derwent’s log book (exhibit A14). In his oral evidence the applicant said that he experienced intense fear during the machine gun incident, when 4-5 bursts of fire each of about 30 seconds duration, passed him at a distance of 12-18 inches as he was leaning over the ship’s rail.
18. In an undated statement (exhibit A8), Mr H P Harris, a Chief Petty Officer at the time when he and the applicant served in HMAS Derwent in 1966, confirmed the occurrence of the machine gun incident:
In March 1966 when HMAS Derwent was approaching Tawau I recall an incident involving a night boarding exercise when a machine gun was fired at a towed target. This event was the cause of considerable “sadistic” merriment in the CPO’s mess in regard to several crew members witnessing the exercise having to make a rapid exit from the side of the ship to avoid the line of fire.
19. In oral evidence, Mr Harris said that he did not witness the machine gun incident but had heard it discussed afterwards in the mess. His recollection was that the line of fire from the machine gun’s position on HMAS Derwent would have meant that bullets would have passed close to but above personnel such as the applicant who were observing the exercise from the side of the ship.
20. In a written statement dated 29 May 2003 (exhibit R1, attachment 2) Mr J Stevens, Rear Admiral (Rtd), who was Commanding Officer of HMAS Derwent at the time of the machine gun incident said he did not recall the machine gun incident and said that if there had been injury to persons or damage to the ship this would have been recorded in the ship’s log.
21. In a written statement dated 21 August 2003 (exhibit A9) Mr K Parker, Petty Officer Marine Technician Propulsion aboard HMAS Melbourne at the time of the liquid oxygen incident said that he recalled the alarm being raised when a fire broke out in the Liquid Oxygen Upper Plant Room. He said that full details of the incident were documented at the time in the Ship’s Damage Control/Fire Records and the Liquid Oxygen Plan and Engineering Watch Logs.
22. In a written statement dated 4 February 2003 (exhibit A6), Mr D Johnson confirmed that a fire had broken out in or near the oxygen bay and that the applicant was DCOW at the time. He said the DCOW had the responsibility for despatching the fire party to bring the fire under control.
23. In his reports dated 11 June 2003 and 22 September 2004 (exhibits R1 and R3) Mr Mulcare said that a file “Fires on HMAS Melbourne” for the period in question had been destroyed. He said that an incident such as the liquid oxygen incident would not be reported in the ships Record of Proceedings. He confirmed that organising the response would come within the responsibilities of the DCOW, but the DCOW had no part in fighting the fire. He said that none of the four officers whom he had contacted when researching the liquid oxygen fire incident recalled the incident.
24. In a report dated 14 January 1997 (T4), Dr P Evans, general practitioner, stated that the applicant suffered from post traumatic stress syndrome, which he referred to in a later report as post traumatic depression. In a report dated 8 May 1997 (T4), Dr G Larder, psychiatrist, diagnosed the applicant as suffering major depressive disorder (1993-1995) due to accumulated life stresses. He said that he had not seen the applicant since 1995 but noted:
I do not believe PTSD about Voyager disaster can be fully assessed while depression has not been properly treated.
25. In a report dated 28 May 1997 (T4, p28-29), Dr J Whiting diagnosed the applicant as suffering PTSD, which he said had contributed significantly to the applicant later developing chronic fatigue syndrome.
26. In a report dated 19 July 2000 (T4, pp35-39), Dr Whiting stated that he had treated the applicant from 1990 and had obtained an extensive history of the applicant’s naval service from which he had formed the opinion that the applicant experienced chronic stress after exposure to multiple distinct stresses during his navy service. Dr Whiting diagnosed the applicant as suffering chronic fatigue syndrome and fibromyalgia which he said was a consequence of work-related stress in the navy. He considered that the applicant’s chronic anxiety state and physical symptoms were inter-related. Dr Whiting referred to the severe pressure of the applicant’s position as chief petty officer and his poor relations at one time with a commanding officer. He also referred to the applicant’s stress during the violent storm incident, the liquid oxygen fire incident, and several other incidents. He said that the applicant was sensitised by these incidents and other stresses of service and he was more susceptible to further physical and psychiatric injury.
27. In a report dated 27 May 2002 (exhibit A11) Dr J Carter, psychiatrist, stated that the applicant had consulted her four times in 2002. She said that she at first found it difficult to obtain a coherent history from the applicant because he was so agitated and distressed when speaking of stressful incidents during his service. Dr Carter said that she had to settle him on a regime of medication so that he could provide a coherent history during future consultations.
28. Dr Carter noted in her report that the applicant was treated for stress during his service. She also stated that she considered that the diagnosis of chronic fatigue syndrome favoured by Dr Whiting had complicated the understanding of the applicant’s PTSD. She stated in her written report that the applicant had suffered from depression as a concomitant of his PTSD but that depression was not prominent as a symptom at the time of her report in 2002.
29. In her second report dated 14 May 2004 (exhibit A12) Dr Carter identified the four incidents now relied upon by the applicant as being the most stressful. Her earlier report mentioned seven incidents (exhibit A11). In her second report Dr Carter clarified that she believed that the stressors mentioned in her earlier report had led to the clinical worsening of PTSD. She said that the machine gun incident could have caused a material worsening of his post traumatic stress disorder.
30. In oral evidence Dr Carter said that the Voyager collision had been the first major stressor for the applicant, and had caused his PTSD. She said however that because he was very distressed when discussing the Voyager collision she had not probed him about it in her interviews. She said that in the machine gun incident, the Komar boat incident, the violent storm incident and the liquid oxygen incident the applicant was faced with the threat of death or serious injury, and in her report at exhibit A12 she said that these were the stressors which caused the maximum worsening of his PTSD. She said that other stressors played their part:
It must be remembered he’d been through a number of traumatic experiences, and even things that each by themselves may not be perceived by some assessor to be major, can appear major to the already traumatised person.
31. Dr Carter said that the permanent worsening of PTSD was shown by the applicant’s descriptions of experiencing stress and feeling worse when the incidents occurred. She noted, additionally, that he was consuming alcohol to cope with the symptoms of his PTSD.
CONSIDERATION OF THE ISSUES
32. There was no dispute between the parties that the applicant had rendered both eligible war service and eligible defence service, and that s120(1) and s120(3) of the Act apply to the period of operational or war service and s120(4) to the period of eligible defence service.
33. Section 9 of the Act specifies the circumstances in which a veteran’s disease or injury is to be taken to be war‑caused. In particular s 9(1)(a), (b) and (e) apply:
9(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;
…….
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
34. Section 70(5) of the Act provides similarly to s9(1)(b) and s9(1)(e) but has no equivalent provision to s9(1)(a).
35. For claims made after 1994, it is necessary to apply any relevant Statement of Principle (SoP), whether the service relied upon is war service or defence service. The SoP’s are determined under s196B of the Act and s196(B) (14) sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service.
the applicant’s periods of war service
36. In respect of the claim as it relates to operational or war service, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war‑caused in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
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 a 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 s 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.
37. The SoP’s raised in this case are those for PTSD, Instrument No 3 of 1999 applying where matters raised relate to eligible war service and Instrument No 4 of 1999 where matters raised relate to eligible defence service. The relevant factor within SoP No 3 and No 4 of 1999 for PTSD that must be related to service is set out in clause 5 of each SoP:
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder;
The SoP’s each then provides in clause 8 (as amended by SoPs No 54 and 55 of 1999) that:
“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 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;
38. Mr Harding submitted that the Tribunal should accept Dr Carter’s uncontested evidence that the applicant suffers from PTSD as a result of the Voyager collision and that the condition is causally related to his war service within the meaning of s9 of the Act through a later worsening of PTSD during relevant service. Mr Harding said that at least one of the incidents or a combination as described by the applicant, were capable of being the severe stressor required by the SoP for PTSD that would satisfy factor 5(b) in the SoP’s. He said that the Tribunal must take into account that the applicant already suffered from PTSD and would be more susceptible to stress than otherwise.
39. Mr Harding submitted that the Tribunal should accept the incidents occurred and that some were corroborated by third parties. He noted that Mr Mulcare’s report supported the occurrence of the severe storm incident although he disputed the applicant’s role in the recovery operations. Mr Harding said that the Tribunal should accept the evidence of Mr Parker concerning the occurrence of the liquid oxygen incident and he said each of the four incidents constituted a severe stressor, as each had the potential to result in death or serious injury. Therefore the hypotheses were reasonable, and the applicant satisfied the third and fourth steps of Deledio.
40. Mr Stoner submitted that the Tribunal should not accept that the applicant has PTSD. He said that the diagnosis of PTSD by Dr Carter was flawed as she had simply set out a checklist of symptoms that mirrored the DSM-IV criteria without referring to how the applicant fulfilled these criteria.
41. Mr Stoner said that the applicant had given no evidence about the worsening of his psychiatric condition and Dr Carter’s report did not say in what manner worsening of the condition of PTSD had occurred. He submitted that for there to be clinical worsening, a disease must become more grave, more grievous or more serious in its effects upon the patient. (Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at 639). Mr Stoner said that the Tribunal should not accept Dr Carter’s evidence that the incidents had worsened PTSD because to establish clinical worsening the event or incident relied upon must be as severe a stressor as that required to cause the condition of PTSD.
42. Mr Stoner submitted that the applicant had changed his version of what incidents had caused him stress throughout the course of his claim and that this cast doubt upon the occurrence of the incidents and whether they were of the severity contemplated as experiencing a severe stressor. He did concede, however, that if the Tribunal found that the machine gun incident occurred, that incident could come within the definition of experiencing a severe stressor. However he said that other incidents did not, and the applicant’s reaction to them was not fear helplessness or horror. He noted that Mr Mulcare had acknowledged that any records of the liquid oxygen incident had been destroyed. He said that the Tribunal should not be persuaded that the Komar Boats incident had occurred at all and if it had occurred as described, there was no question that it would have been reported in the Record of Proceedings. He referred to the evidence of the Commanding Officer of HMAS Derwent that the applicant’s account was a fantasy.
diagnosis
43. The first question for the Tribunal is that of diagnosis and on this issue the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed, on the balance of probabilities. This is so for both eligible war service and defence service.
44. The Tribunal takes into account that the only psychiatric evidence was that of Dr Carter. The applicant’s general practitioner, Dr Evans, had adopted the diagnosis of PTSD when referring to the applicant’s condition when completing the medical section of the applicant’s claim forms. Dr Whiting refers to PTSD in his written reports concerning the applicant. However neither medical practitioner has qualifications in psychiatry. Little reliance can be placed upon their use of the term PTSD to describe the applicant’s psychiatric condition, particularly when neither doctor gave oral evidence.
45. The Tribunal agrees with Mr Stoner that Dr Carter’s reports lack detail; are expressed in general terms; and give little insight into the features of the applicant’s behaviour or specific symptoms that she relied upon to diagnose PTSD (which she sees as arising from the Voyager collision), or as the foundation for her view that PTSD was clinically worsened during periods of eligible service.
46. Dr Carter has the relevant qualifications in psychiatry; she saw the applicant on a number of occasions and she has treated the applicant for the condition. There is no competing medical evidence concerning diagnosis and some support for a diagnosis of PTSD is offered by Dr Larder, who in commenting that the applicant had a major depressive disorder between 1993 and 1995, stated that he did not believe that PTSD about the Voyager disaster could be assessed while the depression was not properly treated. The Tribunal did not have the benefit of hearing from Dr Larder who had treated the applicant prior to 1995. However his comment should not be taken as suggesting that Dr Larder preferred the diagnosis of depressive disorder to that of PTSD, nor that he was discounting the possibility that the applicant had PTSD.
47. The Tribunal is reasonably satisfied that the applicant suffers from PTSD and accepts the evidence of Dr Carter that his PTSD stems from his experience arising from the Voyager collision.
48. The Tribunal in Hatherall and Repatriation Commission [2002] AATA 77, after referring to Gould’s Medical Dictionary 4th edition, said that the expression clinical worsening in SoP’s includes pertaining to they symptoms and cause of the disease as observed by the physician, in opposition to anatomic changes found in the pathology. In regard to the requirement of factor 5(b) of the SoP for PTSD that clinical worsening is pointed to by the evidence, Dr Carter’s clear evidence was that the incidents relied upon by the applicant led to a worsening of his PTSD and that his susceptibility to stressors was increased once he had PTSD. She has the relevant experience to provide this view; it is pointed to by the evidence and is consistent with the applicant descriptions of his worsening symptoms after events in which he experienced stress.
49. In relation to the period of eligible war service and applying Deledio, the Tribunal is satisfied that the material points to hypotheses connecting the applicant's psychiatric condition with the circumstances of the particular service rendered by him, those hypotheses relying on the machine gun incident, the violent storm incident, and the Komar boats incident. As there is a SoP in force for PTSD, the first and second steps in Deledio are satisfied.
50. In respect of the third step, for an hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP (Repatriation Commission v Hill [2002] FCAFC 192).
51. The Tribunal notes that the definition of experiencing a severe stressor in the SoP requires the occurrence of a particular kind or category of stressor but no longer requires, as had an earlier SoP, that the person’s reaction was that of intense fear, helplessness or horror.
52. In Stoddart v Repatriation Commission (2003) 74 ALD 366 the Federal Court stated (at 378):
…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 fall within the adjectival clause.
In Woodward v Repatriation Commission (2003) 75 ALD 420 the Full Federal Court concluded (at 445):
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.
53. The Tribunal notes the circumstances of the events described as occurring during eligible war service and relied upon by the applicant as stressors: the machine gun incident, the Komar boats incident, and the violent storm incident. The Tribunal takes into account that the applicant had referred to numerous incidents or stresses during his service. However the extensive research by Mr Mulcare supported the applicant’s case in regard to the violent storm incident and there was evidence supporting the boarding party exercise (which led to the machine gun incident) taking place during a period of the applicant’s eligible war service. The Tribunal agrees with Mr Stoner’s concession that if the machine gun incident occurred as the applicant described, it was an event that met the definition in the SoP of experiencing a severe stressor.
54. For each of the three incidents relied upon for eligible war service the Tribunal considered that the applicant’s experiences of the incidents could not be described as idiosyncratic and personal perceptions of events which, judged objectively, do not fall within the adjectival clause (Stoddart) particularly when account is taken of Dr Carter’s evidence that the applicant was more susceptible to experiencing stress because he already suffered from PTSD.
55. The Tribunal considers that taken overall there is material or evidence pointing to the applicant meeting factor 5(b) in the SoP relating to clinical worsening of PTSD through experiencing a severe stressor. Therefore the hypotheses connecting this condition with the applicant’s service are consistent with the template and are deemed to be reasonable. The applicant satisfies the third step of Deledio in relation to PTSD.
56. At the fourth step the Tribunal is required to make findings of fact. The Tribunal accepted the applicant as truthful in recounting his recollection of events that occurred some time ago. The Tribunal accepts that he found a number of incidents of his service stressful and difficult and drew no adverse inference from his reliance at the hearing on a lesser number of incidents than the incidents raised with medical practitioners and with the VRB.
57. Section 120(1) provides that the claim will be granted unless it is shown beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s PTSD dependence is war-caused within one of the provisions for causation provided in s9 of the Act. The applicant’s case rests on the clinical worsening during service of the condition of PTSD that had occurred prior to any period of service directly covered by the Act. There was limited medical evidence available but the medical evidence supported the applicant’s case that his condition was worsened by the incidents on service. The Tribunal accepted his evidence that he used alcohol to control his stress and sought help for his anxiety during his service. The Tribunal accepts the evidence of Dr Carter that he was more susceptible to additional stress because of his existing condition and was satisfied that the applicant’s PTSD was worsened by incidents of stress on service.
58. Under s120(1) an hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts are proved inconsistent with those raised by the hypothesis.
59. The Tribunal finds however that the machine gun incident and the violent storm incident occurred and were incidents that were capable of, and accepting the evidence of Dr Carter, did worsen the applicant’s PTSD. The Tribunal agrees with the respondent’s concession that the incident that most readily fits the definition of experiencing a severe stressor is the machine gun incident because that incident entailed direct threat to the physical integrity of the applicant and others. The occurrence of the incident was supported by Mr Harris and by records in the March 1996 Report of Proceedings for HMAS Derwent.
60. The evidence supported the occurrence of the violent storm incident and was summarised in the second report of Mr Mulcare. The perceptions of others who were involved in the incident will be of limited assistance when the Tribunal must focus on the applicant’s experience. A written statement was provided by Mr E James Lieutenant Commander (Retired) who described the actions that he took in securing the containers. He had no recollection of the ship rolling, nor could he recall how long the operation of securing the cargo took, although the ship’s log for 13 October 1971 records the incident as taking place between 1300 and 1500 hours. The Tribunal accepts the applicant’s evidence that he experienced this incident as severely stressful to him. It was an emergency situation of extended duration in difficult weather and the applicant was more vulnerable to experiencing stress because of his PTSD.
61. The Tribunal was not satisfied beyond reasonable doubt that there are no sufficient grounds for granting the claim, as based upon the machine gun incident and the violent storm incident.
62. For these reasons there is no necessity to consider the Komar boats incident, though it was clear that the occurrence of that incident was disproved beyond reasonable doubt through Mr Mulcare’s investigations.
The period of defence service
63. In respect of the claim for the period of defence service only the liquid oxygen fire incident occurs in this period. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant's condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant's service (s120B(3)(b)). The relationship to service must be one of the relationships prescribed in s196B(14) of the Act.
64. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
65. Much of the reasoning above in regard to evidence concerning the condition of PTSD and issues of clinical worsening apply equally to this part of the claim. Essentially the issue of whether the applicant succeeds in regard to the liquid oxygen incident depends upon whether it is capable of being a severe stressor as defined in the SoP.
66. The Tribunal accepts the evidence that the applicant did not have direct involvement with the fire control itself and that he exercised professionalism in carrying out his duties, with the result the fire was soon brought under control. However his evidence was that he was extremely stressed during the incident and suffered nightmares after it as well as increasing his alcohol intake. It was an incident that involved threat of serious injury and he was in a responsible position to direct how the situation would be dealt with. Accepting Dr Carter’s evidence, his existing condition of PTSD heightened his vulnerability at these times.
67. For these reasons the claim as it relates to defence service also succeeds.
DECISION
68. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s PTSD is war and defence caused with effect from 31 October 1996. The Tribunal remits the matter to the respondent for the assessment of the rate of pension payable.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Camille Banks
AssociateDate/s of Hearing 18 August and 16 November 2004
Date of Decision 8 March 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr J Stoner, Departmental Advocate
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