Hausler and Repatriation Commission
[2011] AATA 684
•30 September 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3210
Veterans' Appeals Division )
Re: Russell Hausler
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM
TRIBUNAL: Dr K S Levy RFD, Senior Member
DATE: 6 October 2011
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- Replace the words “with effect from” in paragraphs (2)(a) and (b) with the words “with an effective date of clinical onset of”.
- Insert new paragraph (2)(c): “c. In accordance with s 177(2)(a) of the Veterans’ Entitlements Act 1986, the date of effect for payment of pension for posttraumatic stress disorder and alcohol dependence is 6 February 2008.”
...................................................................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 684
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3210
VETERANS' APPEALS DIVISION ) Re RUSSELL HAUSLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date30 September 2011
PlaceBrisbane
Decision The Tribunal:
1. affirms the decision under review with respect to the incidents on 12 February 1983 and 11 June 1983; and
2. sets aside the decision under review with respect to the fire on HMAS Vampire on 8 February 1984 and substitutes the decision that:
a. the applicant’s posttraumatic stress disorder is defence-caused with effect from 8 February 1984; and
b. the applicant’s alcohol dependence, related to posttraumatic stress disorder, is defence-caused with effect from 1 July 2000.
...................[Sgd].........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Disability pension – Defence service with Royal Australian Navy – Diagnoses of posttraumatic stress disorder and alcohol dependence – Statement of Principles for first two incidents not satisfied – Statement of Principles for third incident satisfied – Posttraumatic stress disorder and alcohol dependence defence-caused – Decision under review affirmed in part and set aside in part
Veterans’ Entitlements Act 1986 (Cth) s 70, s 120, 120B
Boys v Repatriation Commission [2011] AATA 389
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Milenz (2006) 93 ALD 107; [2006] FCA 1436
The Commonwealth v Wright [1956] 96 CLR 536
Woodward v Repatriation Commission [2006] AATA 1099
REASONS FOR DECISION
30 September 2011 Dr K S Levy RFD, Senior Member INTRODUCTION
1. The applicant, Russell Hausler, served in the Royal Australian Navy (RAN) from 8 February 1982 to 7 February 1988. Mr Hausler undertook defence service during the whole of that period and was not posted to any position on operational service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the Act). He has applied for recognition of two medical conditions: posttraumatic stress disorder (PTSD) and alcohol abuse (AA)/alcohol dependence (AD). Those applications were rejected by the Repatriation Commission on 27 June 2008. He sought further review by the Veterans’ Review Board, which also rejected his claims on 22 April 2010. Mr Hausler now appeals to this Tribunal.
ISSUES
2. The following issues were submitted to the Tribunal for determination:
(1)Are any of the incidents submitted by the applicant a Category 1A or 1B stressor?
(2)Are the diagnoses of PTSD and AA/AD appropriate?
(3)If yes, what was the date of clinical onset of PTSD and/or AA/AD?
(4)If the answer to (2) is yes, is Mr Hausler’s PTSD “defence caused” within s 70 of the Act? and
(5)If the answer to (2) is yes, is Mr Hausler’s condition of AA/AD “defence caused” within s 70 of the Act?
EVIDENCE
3. Mr Hausler is presently 47 years of age. He joined the Navy at 17 years of age and was discharged at 23 years of age. He currently lives a reclusive life in regional Queensland. When he joined the RAN, he was a moderate social drinker (T‑documents, Folios 30 – 31). Approximately 12 months after enlistment, it appears that he was regularly intoxicated (T-documents, Folio 38). Apart from a period of three years in the latter part of his service when he desisted from alcohol, AA or AD has been a constant feature in his adult life.
4. The applicant says there were three incidents which were traumatic for him during service and which have caused his AD. These incidents were:
(1)12 February 1983 – at 4.15am at Kings Cross in Sydney while on short leave, the applicant was involved in an incident which resulted in him having his left ear cut with a “fist knife”.
(2)11 June 1983 – the applicant was walking towards Kings Cross not far from the Garden Island Naval Base when a firecracker was thrown at him, lacerating the cornea of his right eye.
(3)8 February 1984 – Mr Hausler was a member of the fire crew of HMAS Vampire when a fire broke out in the boiler room of the ship. He was required to attempt to fill the boiler room from the roof with foam and subsequently steam was used to extinguish the fire. He was inside the ship all of the time this emergency was being dealt with.
5. The medical records of Mr Hausler’s naval service depict a young man whose life was almost always turbulent and whose behaviour repeatedly came to the attention of his senior officers and also to senior medical staff. On 18 January 1984, a daily medical report records him returning on board the ship at 6.30am under the influence of alcohol. It is also noted that was the second occasion in the previous month that this had occurred (T-documents, Folio 37). He had been a member of the RAN less than two years at that stage. On 22 April 1984 a daily medical report also shows him suffering alcohol ingestion (T-documents, Folios 36 – 37). By May 1984, his medical record shows that he had been referred to a Surgeon Commander for assessment of his excessive alcohol use and, if necessary, treatment. This was precipitated because he had a number of incidents of disciplinary action taken against him in 1983 that continued into 1984. The applicant told the reviewing medical officer at the time that he drank two to three cans per day, drank to excess on weekends and was regularly in a drunken state. It was noted also at that time that while he drank before he joined the Navy his intake was quite low; however, in just over two years of naval service his alcohol intake had become quite excessive.
6. There is a further report of 5 October 1984, which is a Medical Board of Survey. That report refers to further breaches of the law and, in particular, a fracas with New South Wales police at Kings Cross where Mr Hausler was charged with assaulting police and other offences. It is understood these offences did not proceed to court. Nevertheless, the evidence shows that he had declared that he had commenced drinking alcohol at 15 years of age, and was by this time (at 19 years of age) a very seasoned drinker who had been subjected to many military discipline charges, could not control his drinking, and suffered alcohol withdrawal and even blackouts. He subsequently attended Alcoholics Anonymous, where the prognosis of his completing the treatment was quite negative. He was downgraded medically at that stage.
7. A further Medical Board of Survey report, dated 16 January 1985, noted that the applicant had by that time remained sober and was endeavouring to be rehabilitated. His medical classification was revised up from Category 7 to Category 4. A subsequent Medical Board of Survey dated 21 June 1985 noted a high degree of success in controlling his alcohol intake, and the report shows that he had abstained completely from alcohol at that time for 12 months. He was subsequently medically reclassified back to Category 1.
8. Further evidence from the applicant, in a statement dated 18 August 2008, again summarised claims he made as to why his conditions are attributable to his Naval service. He stated that he did not like the taste of alcohol, and that the occasional times on which he drank alcohol before he joined the Navy were special occasions, usually with his family. He said that he was adversely affected by his naval experiences, namely bastardisation in his initial recruit training; being incarcerated in the cells at HMAS Cerberus, as a result of an error in identity and subsequent mood change, with resort to alcohol; and the three major incidents referred to above. He also states that some sailors whom he knew were killed in off‑duty accidents. On 10 January 2009, the applicant completed a Drinking Questionnaire as part of his application for pension to the Department of Veterans Affairs. In that record, he states that he regularly went to nightclubs in the city after joining the Navy and that by August 1982 he was drinking about 20 schooners between Friday evening and Sunday evening each week. This was attributable to his frequent social outings in Kings Cross. At the time of the report, he said he was drinking a half a case of beer, four to five strong home brews plus spirits (T-Documents, Folios 157 – 159).
9. Mr Hausler pointed to claims of bastardisation in his early career, the two incidents outside the base at Garden Island and the fire on board HMAS Vampire as being significant in his change of attitude and behaviour (applicant’s letter of 14 September 2010 and oral evidence at the Tribunal hearing). He also claimed the fire on board HMAS Vampire was influential in the deterioration of his psychological condition and his AA (applicant’s letter 7 October 2010).
10. Since leaving the Navy, he has had treatment for extracting a cataract from his eye, as shown in the report of Dr David Denman (eye surgeon) dated 6 December 2000. His injury is attributed to the fire cracker incident in June 1983. Mr Hausler has received disability support pension because of chronic pain in his back and left shoulder. Since leaving the Navy he has also had a number of convictions in the civil courts for traffic and drug offences, assault and theft. These all seem to be linked, in one way or another, to his intake of alcohol (letter dated 7 October 2010).
11. For about 12 years he had occupations such as working on gaming machines and bread runs. He tried study at Gatton College for two years but could not complete it. He had a relationship with a lady and they had a daughter, who is now about 14 years old.
12. The applicant was assessed by a psychiatrist, Dr M May on 25 June 2008, who diagnosed the applicant with PTSD and AD, which was said to be attributable to the fire cracker incident at Kings Cross. An appointment was also made for him to attend psychiatrist Dr L Ryan on 11 April 2011 to obtain a more recent report. It appears the applicant was quite intimidating to Dr Ryan, who ceased the interview at an early stage because of the applicant’s behaviour (see letter dated 11 April 2011).
CONSIDERATION
13. In assessing the applicant’s claims, as his service was all defence service (and not operational service), the relevant statutory provision in relation to eligibility for pension is s 70(5) of the Act. To the extent applicable, it provides:
Section 70
Eligibility for pension under this Part
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
14. The standard of proof to be applied is that of reasonable satisfaction (see s 120(4) of the Act). Also relevant is s 120B(3), which directs that the standard will only be satisfied where the material raises a connection between the injury of the person and the particular defence service rendered by that person; and there is in force a Statement of Principles (SoP) which upholds the contention that the injury is, on the balance of probabilities, connected with that service.
15. Mr Hausler’s claims must be assessed according to the following SoPs:
(1) PTSD – Instrument No 6 of 2008; and
(2) AA/AD – Instrument No 2 of 2009.
16. According to paragraph 3 of the SoP for PTSD, the diagnostic criteria for PTSD, as relevant, are:
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
…
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of a traumatic event;
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
…
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
…
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) ...; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
17. Critical to the assessment of PTSD is whether any of the stressors (incidents submitted by the applicant) that satisfy the definition of a Category 1A or Category 1B stressor were experienced before the clinical onset of PTSD (paragraph 6 of SoP No 6 of 2008).
18. According to paragraph 3 of the SoP for AD, the diagnostic criteria for AD, as relevant, are:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12‑month period:
(1) Tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of the alcohol to achieve intoxication or desired effect; or
(b) markedly diminished effect with continued use of the same amount of the alcohol.
…
(3) The alcohol is often taken in larger amounts or over a longer period than was intended.(4) There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
(5) A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.
…
19. Category 1A and 1B stressors are defined in both of the abovementioned SOPs as:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties.
20. As raised by the respondent, consideration of this matter is influenced by the decision of Repatriation Commission v Milenz (2006) 93 ALD 107; [2006] FCA 1436 (Milenz), a Federal Court case involving an RAN sailor in South Vietnamese waters in 1971 where the ship he was serving on went to “action stations” and was locked down for a short period. No hostile activity resulted. That case was one of a sailor on operational service. In overturning the original decision, Finn J in the Federal Court emphasised that a tribunal must consider whether a hypothesis fits the template of an SoP and that it is the requirements of the SoP which must be adhered to. A tribunal “... cannot use other evidence (expert or otherwise) to contradict or provide an alternative to the requirements of a SoP” (at [30]). In Milenz, the Court also referred to Repatriation Commission v Gosewinckel (1999) 59 ALD 690 where Weinberg J said that the provision of s 120A was “... introduced in order to take the determination of ‘purely medical issues’ out of the hands of bodies such as the [Tribunal]” (at [32]). Finn J also emphasised that any clinical worsening must be viewed as a medical definition, that is, it must have “... the features, symptoms and manifestations prescribed in the relevant SoPs definition”: cf Lees v Repatriation Commission [2002] FCAFC 398 at [16]; (2002) 125 FCR 331 at [33].
21. The same principles can be said to apply to this case, except that the relevant provision is s 120B as Mr Hausler’s case is one of defence service, not one of operational service. Also, the relevant standard of proof is that of reasonable satisfaction under s 120(4) (and not a reasonable hypothesis as in Milenz).
22. I turn now to consider the issues for determination. The theory of the applicant’s case is that his almost complete inability to now integrate effectively into society and to function in a normal way is due to:
(a)Bastardisation as a recruit and junior sailor;
(b)The “fist knife” attack (12 February 1983);
(c)The fire cracker thrown into his eye, resulting in hospitalisation (11 June 1983);
(d)The fire on HMAS Vampire (8 February 1984).
23. I make the following findings of fact:
(a)Mr Hausler experienced some distressing treatment as a young sailor in his initial training and as a junior sailor;
(b)Mr Hausler was assaulted on 12 February 1983 while on short leave from Garden Island, resulting in him having a cut to his left ear with a “fist knife”;
(c)Mr Hausler experienced an assault while on short leave on 11 June 1983 near the Garden Island base, when a firecracker was thrown into his eye, resulting in significant eye damage;
(d)On 8 February 1984, Mr Hausler was involved in extinguishing a fire on HMAS Vampire as part of a Fire Team and that the actions of the Fire Team prevented the loss of significant lives of the crew and possibly the ship.
Issue 1 – Are any of the Incidents submitted by the applicant a Category 1A or 1B stressor?
24. Referring to the three incidents raised in the evidence (see paragraph 4), these must be assessed against the relevant definitions in paragraph 19. Incident 1 involved a fracas between the applicant and another person as he was leaving a shop in Kings Cross at 4.15am. From the description provided in the evidence it resulted in him sustaining a 1½ - 2 cm laceration to his left ear (by what is termed a “fist knife”) and a chipped tooth. The applicant placed no emphasis on this incident in his oral evidence.
25. It does not seem to me that the description of that incident or “event” could fairly be regarded as a life-threatening event, a serious physical attack or assault (a Category 1A stressor). Equally, it does not fall within the bounds of a “severe traumatic event” of being a witness to serious injury or death or atrocities inflicted on others. There is also no indication that the disturbance associated with this criterion existed for more than 1 month as required by paragraph 3(b)(E) of SoP No 6 of 2008. Therefore Incident 1 is not a Category 1A or 1B stressor.
26. Incident 2 is the firecracker “event” that occurred on 11 June 1983. Mr Hausler was not on duty at the time but was walking back to the base at Garden Island in Sydney. The reaction he describes, the lengthy period of hospitalisation and subsequent eyesight deficit is not inconsistent with it being a severe traumatic event which is the result of a serious physical attack. Incident 2 is a Category 1A stressor.
27. Incident 3 describes Mr Hausler’s involvement in fighting the fire on HMAS Vampire. His description of the event is corroborated by the independent statement of Lieutenant Commander David Twiss RAN (Rtd). The latter statement describes the fire as being firstly, out of control and then refers to the situation having become “totally out of control”. It was the ultimate decision of the captain to steam drench the fire and Lieutenant Commander Twiss states that without that action and that of the fire party, including Mr Hausler, “the ship would have been totally engulfed with the loss of many lives”. That independent evidence also describes the actions of the members of the fire team and that the incident left “an indelible memory” on those involved. Two of the sailors of the fire party were awarded bravery commendations. That evidence and the applicant’s account of its effect on him was a severe traumatic event which was life-threatening. It is therefore a Category 1A stressor.
Issue 2 - Diagnoses of PTSD and AD
28. I must make a determination based on the standard of proof set out in s 120(4) and s 120B(3) as to the correct diagnoses for Mr Hausler’s conditions. Also, I must consider the diagnostic criteria set out in the relevant SoP for the diagnoses provided by a medical professional assessment. Dr M May, psychiatrist in his report dated 2 June 2008, concluded that Mr Hausler suffers from PTSD and chemical dependency (alcohol).
29. I have found above that Incidents 2 and 3 were Category 1A stressors. One diagnostic criterion for PTSD which is consistent with a Category 1A stressor is the traumatic event which was a serious injury to his right eye. The other incident (Incident 3) is the fire on HMAS Vampire. Both these incidents could be regarded as a threat to his physical integrity and resulting in a response of fear or helplessness (particularly Incident 3).
30. From Mr Hausler’s evidence-in-chief of Incident 3, it could be regarded as “threatened death” while on duty and which elicited responses of fear, helplessness and horror. The applicant described in evidence he “wet his pants” and was worried about the ammunition exploding. He expected there would be “a big flash” and that would be “the end”. He was 18 or 19 years of age at the time and he was trapped there and “couldn’t go anywhere”. The psychiatric assessment (consistently with the applicant’s naval medical records in many respects) notes his diminished interest or participation in significant activities, a clear sense of detachment and estrangement from social contact, has a restricted range of affect, irritability and outbursts of anger, difficulty in concentration and a clinically significant impairment in social and occupational areas of functioning. His defence service combined with his long-term relatively low-level criminal history, instability in relationships and alcoholism reflects the level of psychological distress which characterises his psychiatric condition. These deficits are long-term issues and have certainly existed for more than one month as required by the SoP.
31. The diagnostic criteria for AD as set out in paragraph 3(b)(i) SoP No 2 of 2009 apply as follows:
1.He demonstrated tolerance to alcohol, in particular consuming increasing amounts.
...
3.The alcohol taken in larger amounts or over a longer period than was intended.
4.There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
5.A great deal of time is spent in activities necessary to obtain the alcohol, use the alcohol or recover from its effects.
32. Incidents 2 and 3 have been found to be Category 1A stressors and with respect to SoP No 2 of 2009, there must be a clinically significant psychiatric condition at the time of the clinical onset of AD (paragraph 6(a)). He clearly suffered dysfunctional behaviour due to alcoholism within months after the incident on HMAS Vampire. He was referred for assessment to attend the Alcohol Rehabilitation program only months after the February 1984 incident. That incident, as described above, I find to be “a life threatening event”. I am therefore satisfied that Dr May’s diagnoses of PTSD and AD are correct and I accept those diagnoses for Mr Hausler.
Issue 3 - Date of Clinical Onset
33. Dr May stated in his report that it is difficult to determine the onset of these symptoms, but he says “they date back to around February 1983” (page 1 of report). He also refers to the fire on HMAS Vampire in February 1984 and Mr Hausler seemed to have recalled “the loss of several shipmates in traumatic circumstances” as being around that time. Dr May then describes Mr Hausler’s reaction on page 2 of his report as follows:
He began to worry excessively about his own security. He bought a shotgun which he kept under his mattress; his sleep became disturbed; he suffered disturbing dreams; he increased his drinking at times of distress.
34. Dr May concluded that Mr Hausler suffered PTSD firstly in 1983, “provoked by” the assaults in Incidents 1 and 2. He further says that there was an “additional provocation” by the threat caused by the fire on HMAS Vampire in 1984 (page 3 of report). His intention is clear from his final summary where he says that Mr Hausler:
…is restricted socially and recreationally by the disorders of PTSD and Alcohol Dependence. These were acquired whilst a serving member. The precipitants for his PTSD included attacks on him by assailants (unknown) and that were life threatening, and a serious shipboard fire. He is totally disabled by virtue of a combination of his conditions or by alcohol dependence alone. He is incapable of working because of his disabilities. His conditions are chronic. (page 4 of report).
35. It is apparent that Dr May considers each of the incidents to be instigating events for PTSD. As only Incident 3 occurred while on duty, I find the date of clinical onset of PTSD to be February 1984. The question about the relevance of AD is also in issue. It is clear that shortly after he joined the RAN the applicant drank progressively more alcohol. It is not possible to state that there is a particular point where the onset of alcoholism clearly occurred and there is no expert evidence to assist with this date. Of course, these are conditions which develop progressively over time and do not occur over extremely short periods like some other medical conditions. However, in page 4 of his report Dr May describes Mr Hausler as imbibing in alcohol:
… to avoid symptoms of either PTSD or impending withdrawal. His alcohol use is clearly demonstrated in excerpts from his military records and many of the legal consequences of his alcohol dependence, including offences whilst still serving in the RAN and later traffic offences... I would see his symptom pattern as satisfying the statement of principles for alcohol dependence and Defense [sic] Service. The onset of alcoholism was during service days and that is clearly documented in his records.
36. Dr May therefore refers to a comorbidity of PTSD and alcohol in that alcohol is used to avoid or minimise his symptoms of PTSD. There were undoubtedly other factors which contributed to the development of his AD and the date of clinical onset of AD cannot be clearly attributed to the date of clinical onset of the condition of PTSD. Suffice it to say, there is no evidence which could recognise this condition prior to the date of clinical onset of PTSD in February 1984, and there was a period where Mr Hausler subsequently abstained from alcohol. Later again (in 1987), he continued to drink after a three year interval of sobriety. All that can be said now with any certainty is that, based on Dr May’s expert psychiatric opinion, AD is now related to his PTSD and could be regarded as being a current issue in treating PTSD sometime after 1987 and, it appears, after his discharge in 1988.
37. Mr Hausler was again having trouble with over-use of alcohol from 1987 – 1988 in the final year of his RAN service. For about 12 years he had occupations such as working on gaming machines and bread runs. He even tried study at Gatton College for two years but could not complete it. He had a relationship with a lady and they had a daughter, who is now about 14 years old. He now sees her annually. His criminal record shows he was unsettled and insecure over all that period. Alcohol was a problem for him over those years. In 2000, he purchased a property and has lived there in a shed since then. He has lived there most of the time, regularly intoxicated and somewhat detached from the world. Dr May’s report shows Mr Hausler was entirely AD in 2000. While Dr May clearly establishes a link between the applicant’s AD with defence service, I cannot be certain that his reference to ‘alcoholism’ while in the RAN equates to AD at that time. I accept however as a finding of fact that there was clearly AA within two years of Incident 3. Given his effective integration into society after discharge from the RAN until 2000, in the absence of precise information, I adopt 1 July 2000 as the date of clinical onset of AD.
Issue 4 - Is PTSD “defence-caused”?
38. The critical question here is whether the present disabilities “arose out of” the applicant’s defence service. In The Commonwealth v Wright (1956) 96 CLR 536, the High Court held, by majority, that travelling back to a camp must be for the purpose of carrying out a member’s employment or trade in the defence service. Therefore, the member cannot merely be travelling to or from employment but there must be a “real connection” between the travel and the official duties of the serviceman.
39. Further, the High Court held in Roncevich v Repatriation Commission [2005] HCA 40 that the question relevant to s 70(5) was whether the servicemen was “on duty” at the time of the injury. This requires a consideration of factors relevant to the person’s employment such as:
(a)“… the circumstances in which it [was] undertaken …”; and as a consequence
(b)“… what … the person is required or expected to do to carry out the actual duties …”; however
(c)“… the connexion … be a causal and not merely a temporal one” (at [23]).
40. Not every injury which occurs while a person is employed by the defence force will be connected with service. In some circumstances, they are personal, not professional activities (see Woodward v Repatriation Commission [2006] AATA 1099; Boys v Repatriation Commission [2011] AATA 389). The applicants in those cases were not successful.
41. In Roncevich, the High Court referred to a broader notion of activities being related to defence service and referred to the special nature of Defence Service and an “expectation” or an informal “requirement” or compulsion (at [24]). The High Court there approved the dissenting judgement of Heerey J in the Full Federal Court where he had relied upon the High Court decision in Henderson v Commissioner of Railways(WA) (1937) 58 CLR 281, where the connection with defence service was said to include activity “incidental to the performance of work” or what the person “… is reasonably required, expected or authorised to do in order to carry out his actual duties” (at [17]).
42. As Incidents 1 and 2 did not occur while the applicant was on duty, they were not “defence-caused”. In respect of Incident 3, I find it did occur while Mr Hausler was “on duty”. However the respondent argued that Dr May only attributed the applicant’s PTSD to Incidents 1 and 2. I do not regard that as a full account of Dr May’s report. It is true that he attributed PTSD to Incidents 1 and 2. However his conclusions on page 3 of his report qualify his initial sentence by adding that the shipboard fire on HMAS Vampire in 1984 was “an additional provocation”. That intention is confirmed in the final paragraph of Dr May’s report on page 4, where he says that the origins of PTSD “included” the assaults “and a serious shipboard fire”. That conclusion is corroborated by Lieutenant Commander Twiss whose report is ample evidence of the fact that the fire was a ‘life-threatening event’.
43. Dr May’s report, read as a whole together with all of the other evidence, highlights Mr Hausler as a person who has had a dysfunctional life, at least for the majority of his adult life. The medical impairment worksheet attached to Dr May’s report briefly summarised the main dysfunctions. He has been unemployed and unemployable for many years. He lives as a recluse. While there were some behavioural challenges and drinking problems even as a young sailor, Mr Hausler has a very long and notable history of contact with the police and courts through numerous traffic offences and offences for violence and dishonesty. The last conviction seems to have been in 1999. Perhaps this is indicative of his present lifestyle as a recluse. He is clearly a difficult person, as evident from his appointment with psychiatrist Dr Ryan which was prematurely terminated. It is also consistent with the diagnostic criteria for PTSD (Milenz).
44. I find that Factor 6(a) of SoP No 6 of 2008 is satisfied and that the condition of PTSD is attributable to his defence service as a result of the fire in Incident 3. I find that Incidents 1 and 2 do not satisfy the statutory requirements.
Issue 5 - Is Alcohol Dependence “defence-caused”?
45. As mentioned in Issue 3 above, AD is related, in the opinion of Dr May, to Incidents 1, 2 and 3. There is evidence to suggest that he had a problem with alcohol from his very early days in the RAN and when Incidents 1 and 2 occurred. Although Incidents 1 and 2 occurred while the applicant was not on duty, there is evidence of alcohol over-use prior to that time. He had an alcohol-free period of rehabilitation of 3 years (approximately) after all of those incidents.
46. When he relapsed in 1987, all three incidents submitted by Mr Hausler had been experienced. Dr May now attributes Mr Hausler’s PTSD and AD to all 3 incidents. Even though Incidents 1 and 2 do not meet the legal criteria to be regarded as “defence-caused”, Incident 3 does meet that definition. AD is a comorbid condition with PTSD.
47. I have already determined the date of clinical onset of PTSD to be February 1984. I have also determined the date of clinical onset of AD as 1 July 2000. AD is associated with PTSD from Incident 3 and may have commenced then or earlier, in conjunction with Incidents 1 and 2. But in any event, only Incident 3 is “defence caused” and there is expert evidence that AD is associated with the applicant’s PTSD.
48. There is evidence of AD and its link to PTSD. Incident 3 seems to me to be a far more serious stressor than Incidents 1 or 2, although Dr May’s report does not describe it that way. There may be many reasons for that and the PTSD condition may undoubtedly affect the impression made about the facts provided to Dr May and as a result, its portrayal in his report. The level of dysfunction over this man’s life for the past 20 years attests to the fact that he has been very seriously affected. The triggering incidents have not been disputed, only their relevance to defence service. AD is integral to PTSD (Incident 3) and therefore AD must be accepted also for Incident 3 as it satisfies Factor 6(a) of SoP No 2 of 2009.
49. I find AD is “defence-caused” under the Act as limited to Incident 3.
DECISION
50. The Tribunal:
1. affirms the decision under review with respect to the incidents on 12 February 1983 and 11 June 1983; and
2. sets aside the decision under review with respect to the fire on HMAS Vampire in 8 February 1984 and substitutes the decision that:
a) the applicant’s posttraumatic stress disorder is defence-caused with effect from 8 February 1984; and
b) the applicant’s alcohol dependence, related to posttraumatic stress disorder, is defence-caused with effect from 1 July 2000.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K S Levy RFD
Signed: .........................[Sgd]........................................
Research AssociateDate/s of Hearing 28 July 2011
Date of Decision 30 September 2011
Counsel for the Applicant Ann Frizelle
Solicitor for the Applicant Noel Payne, advocateSolicitor for the Respondent Jeff Kelly, departmental advocate
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