Hayden and Repatriation Commission
[2004] AATA 429
•30 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 429
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/5
VETERANS' APPEALS DIVISION ) Re HANS (PREVIOUSLY KNOWN AS
HAROLD) HAYDENApplicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date30 April 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that Hans Hayden suffers from war-caused generalised anxiety disorder and alcohol dependence with date of effect 5 April 2001.
...................(Sgd)......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – generalised anxiety disorder and alcohol dependence – reasonable hypothesis established connecting conditions with war service
Veterans’ Entitlements Act 1986 ss 9, 120, 102A, 196A, 196B
Re Parr and Repatriation Commission [2003] AATA 93
O’Neill v Repatriation Commission [2001] FCA 1492
Re Robinson and Repatriation Commission [2002] AATA 894
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Hurn and Repatriation Commission [2001] AATA 907
Re Lees and Repatriation Commission [2002] AATA 98
Re Walsh and Repatriation Commission [2001] AATA 483
Re Webb and Repatriation Commission [2003] AATA 203
Re Peace and Repatriation Commission [2003] AATA 1013REASONS FOR DECISION
30 April 2004 Mr IR Way, Member 1. This is an application by Hans Hayden for a review of a decision of the Repatriation Commission dated 2 October 2001, affirmed by the Veterans’ Review Board (VRB) on 4 October 2002, which determined that the veteran does not suffer from service related Anxiety Disorder and Alcohol Abuse or Alcohol Dependence.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T6) and other documentary evidence as follows:
§ Exhibit A1 Statement of Hans Hayden dated 6 June 2003
§ Exhibit A2 Statement of Hans Hayden dated 9 June 2003
§ Exhibit R1 Income support Pension Claim and Tax Statement
§ Exhibit R2 Report from Writeway Research Service Pty Ltd dated 31 October 2003
3. The applicant was represented by Ms B Carter-Nicoll of Counsel, instructed by Sciacca’s Lawyers and Consultants and the respondent was represented by Mr D McAninly, Departmental Advocate. The applicant gave oral evidence. Dr May, Psychiatrist, gave evidence by telephone.
4. The applicant was born on 30 July 1938 and served in the Royal Australian Airforce (RAAF) from 5 March 1958 to 5 May 1978 and rendered operational service as an Engine Fitter in Malaysia and Singapore from 11 September 1964 to 11 October 1964 He rendered eligible defence service from 7 December 1972 to May 1978. This matter is contested with respect to the circumstances of the applicant’s operational service. Whilst serving in Singapore the applicant was attached to 3 Squadron (Sabre jets) operating out of RAF bases at Changi and Tengah.
5. The applicant’s accepted service related disability is bilateral sensorineural hearing loss with tinnitus. His rejected disabilities are anxiety disorder and alcohol dependence or abuse, these being the subject of this appeal.
6. The applicant’s hypothesis is that he experienced a severe psychosocial stressor during his service in Singapore which resulted in him suffering from generalised anxiety disorder (GAD) and that secondary to these stressors and his GAD he also suffers from alcohol dependence (AD).
7. There is no dispute between the parties that the veteran suffers from GAD and AD and in view of this, and on the material before it the Tribunal so finds.
legislative framework
8. The relevant provisions of the Act are as follows:
“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;
…
(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;”
9. The relevant provisions of the Act relating to the appropriate standard of proof are 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.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
10. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
11. It is common ground between the parties and the Tribunal accepts that the following Statements of Principles (SoPs) are relevant in this matter:
§ Anxiety Disorder – Instrument Number 1 of 2000
§ Alcohol Dependence or Alcohol Abuse – Instrument Number 76 of 1998
12. The SoPs relevantly provide:
§ Instrument Number 1 of 2000:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i)being a prisoner of war before the clinical onset of anxiety disorder; or
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …
Other Definitions
8. For the purposes of this Statement of Principles:
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
§ Instrument No 76 of 1998:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers. …
Other definitions
…
‘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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
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;”
Applicant’s Evidence
13. It was the applicant’s evidence that he suffered a number of stressful events during his service in Singapore. He described these events as follows:
Sidewinder Event
14. While at Changi the applicant and another LAC where waiting underneath the wing of a Sabre Jet, ready to refuel the aircraft after armourers had completed servicing a sidewinder missile. He stated:
“Suddenly the rear of the missile started smoking and everyone cleared the area with great haste.
The smoke stopped as quickly as it appeared, maybe 20 seconds or so.
The missile was removed and we refuelled the aircraft…
This incident was potentially very dangerous, and added considerably to the stress I was experiencing at the time.”
15. The Tribunal notes that this incident is confirmed by Mr TA McIntosh (T4/45) who was a Sergeant Armourer Fitter at Changi at the time. Mr McIntosh states :
“Sgt Comer woke me up and informed me that members of his team had accidentally initiated the gas generator fitted to one of the two operational sidewinders during routine maintenance of an aircraft.
From what I recall, its 38 years ago, apparently the servicing of the aircraft at the time required, unloading of both sidewinders, conducting sidewinder circuit testing using an ASM 11 test set, then reloading both sidewinders. The launchers would have had the safety pins in place at times when the sidewinders were loaded. – these safety pins were designed to prevent accidental firing of the missile rocket motor but not the Gas Grain Generator of the G and C Unit.
From what I recall Sgt Comer said that there was a mix up between the personnel carrying out the circuit testing and the team unloading and reloading the missiles. Apparently a missile was loaded on one side of the aircraft while circuit testing was still being carried out on the other side. This resulted in the accidental initiation of the gas generator fitted to the sidewinder loaded to the other side of the aircraft from which tests were being conducted. The initiation resulted in a smoke and gas being emitted from the underside of the front of the missile – the noise and smoke no doubt would have been unsettling and disconcerting to personnel in the vicinity until the armament staff present became aware of exactly what was going on and informed them of what had happened.
Sgt Comer informed me that no one was injured at the time and that the appropriate documentation was completed. At no time, because of the safety pins being in place, was there a danger of the rocket motor igniting and firing the missile. I understand that the missile now being unserviceable was removed and replaced by another serviceable missile. In time the guidance and control unit would be repaired and returned to service.”
16. In his oral evidence, the applicant said that he was fearful of an explosion and vacated the site “damn fast”, thinking the missile could be dislodged and go anywhere and that it was a dangerous situation. He said that after the situation was bought under control he continued with his duties including refuelling the aircraft. He said he could not recall discussing the incident with anyone, either at the time or subsequently. The veteran told the Tribunal that he was not qualified as an armourer and while he had on many occasions assisted armourers in placing missiles onto launching rails, he did not arm missiles or carry out any specialist armourer tasks. He said that while he had seen sidewinder missiles loaded many times, he did not comprehend what the armourers were doing. He agreed that he was aware that safety pins were in place in the missile at the time of the malfunction. He said the incident caused him to become constantly tense, easily upset, particularly by loud noises, suffer headaches and have a short temper. The applicant stated that his stressed state of mind caused him great difficulty in decision making and he lacked confidence in his ability to do his job. He said he was not a spectator observing the incident, he was directly involved, believes he never got over the incident and that the incident was the most stressful event he experienced during his service in Singapore.
Work Stressors
17. The applicant explained the difficulties he experienced in Singapore as a result of twenty-six men being billeted in one concrete block (which normally housed four airmen) and having to work very hard for very long hours on the days on duty. He described a five day shift pattern with three and a half days on and one and a half days off and said with men coming and going it was difficult to get rest. He said that the billet was approximately 300 metres from the end of the runway and the noise from constant aircraft movements was loud and added to the difficulties in getting adequate rest. It was the applicant’s evidence that the close quarters, the long working hours, the noise and excessive alcohol assumption caused interpersonal altercations and disruptions which added to the stress he suffered.
Possible Indonesian Invasion
18. It was the applicant’s evidence that he was shocked and frightened about what he perceived to be the inability of Singapore to defend itself against attack from Indonesian forces, being aware of rumours of Indonesian troop movements on the Malay Peninsula and in Borneo, and being mindful of the capture of a heavily fortified Singapore by Japanese forces twenty-two years prior to his service in Singapore. He said he was not armed and was greatly concerned for his and others ultimate safety; had a great fear of never knowing what was going on around him; did not want to see any of his mates laying by an aircraft badly injured or dead, “due to the ignorance of our commanders”. In arriving at his assessment of the defence readiness of Singapore the applicant said he went to some lengths to investigate this and he set out in detail (at T4/59-61) his perceptions following what he described as his travels by bus and taxi around the island of Singapore during one period of off duty time while based at Tengah. When asked if he had discussed his concerns with any of his superior officers the veteran said he had not and had only discussed the concerns with workmates at/or below his level; that he got more from the Straits Times than he did from the Airforce authorities who never briefed the troops; and he agreed that much of what he heard from his colleagues was only scuttlebutt and hearsay.
19. The Tribunal notes that it was the applicant’s evidence that prior to his operational service he considered himself to be a social drinker. However he started heavy drinking as soon as he got to Singapore to forget the stress he suffered and to drink himself to sleep. He said his alcohol consumption increased after the sidewinder incident.
20. In relation to his feelings in the two years after of the Singapore posting, the applicant said he was terrified of making mistakes, was stressed all the time, found it difficult to concentrate and apply himself to his work, was upset by unusual noise, drank too much alcohol and was still trying to get past the Singapore incidents. He said that prior to going to Singapore he had no problems and had received good reports about his work.
21. The Tribunal notes that the applicant described witnessing a very serious accident where a cannon shell exploded while armourers were trying to clear a jammed shell from the breach of a cannon. He said that a rod being used to clear the shell had gone through the hand of one of the men. He said the injured man had been thrown to the ground, there was blood around and on him and he lay motionless. He said he thought the man on the ground was dead. The Tribunal notes that this claimed incident occurred while the veteran was serving with 23 Squadron at Amberley in 1960 prior to the veteran’s operational service in Singapore in 1964. And that, in cross examination, the veteran said that he had come to terms with the incident and any problems he had experienced as a result of the accident, including his drinking, had been resolved within a couple of years.
22. The applicant told the Tribunal that he was married in April 1960, at age twenty-one, had two sons from that marriage, one born in 1961 and one born in 1963 and that his marriage was fine before he went to Singapore. He said the marriage experienced difficulties after he returned from Singapore and went steadily downhill because of his drinking. The Tribunal notes that Dr May records the veteran’s wife leaving him for another man after thirteen years of marriage and the veteran was left to raise his two sons. The veteran remarried in 1990. He said that being single for seventeen years and raising his two sons had not caused him any particular concern or stress.
23. In cross examination, the applicant was taken to his claim for anxiety disorder (signed by him on the 29 June 2001) where it is stated that he first became aware of his anxiety disorder in 1999 and believed his anxiety disorder is:
“due to my adenocarcinoma I have become stressed out and anxious. I have a constant fear that the cancer will break out somewhere else. I have become anti-social, bad tempered, smoke more and drink a lot. I found the anticipated stress and anxiety of being on operational service in Malaya/Singapore has added to my problem.”
24. The applicant said that while this statement was not in his writing (being prepared by Mr Sly, an RSL Advocate), it was what he intended to say, he had read it and it made sense at the time. He said that he would now say he had put the “cart before the horse”.
25. With respect to his bowel cancer the applicant said he was a lucky survivor of five years. The Tribunal notes that the applicant confirms what he said in his statement (Exhibit A1):
“Since my initial diagnosis of bowel cancer, I experienced many fits of prolonged depression, accompanied by headaches, which I feel was caused by my constant worry about the state of my health.
My mood swings went from thoughts of suicide to feeling of great anxiety and fear when experiencing any irregularity within my body that I couldn’t explain.
Since diagnosed, I have undergone:
§ 3 colonoscopy another to come on the 19 May 2003;
§ 3 monthly CER tests until this moment;
§ several liver function tests;
§ 3 abdominal scans;
§ one head scan;
§ numerous deepskin cancers surgically removed; and
§ one breast tumour/cyst removed.
Since 5 October 2001, I have taken Serapose daily and am in constant fear of the cancer reappearing in my body. To that end a colposcope performed at Cooloola Private Hospital revealed 2 polypo 9mm across in one area of my bowel. They were removed in site.
Since early last year 2002, I attended my local medical practitioner for check ups, counselling and therapy treatment and since 2 July 2001, I have been receiving psychiatric guidance from Doctor Marsh May, MB, BS.FRANZCP on a 2 monthly.”
26. The Tribunal also notes that the applicant first sought psychiatric help on the advice of Mr Sly and that the veteran’s GP never suggested he see a psychiatrist. When asked if he could explain why Dr May placed emphasis on the exploding cannon shell incident, when, on his own evidence the veteran resolved any difficulties arising from the incident, the veteran said that he had not emphasised that particular incident more than any other.
Medical Evidence
27. Dr M May, psychiatrist, first saw the applicant on 2 July 2001 and continues to see the applicant on a regular basis. Dr May provided two written reports, one dated 15 August 2001 (T4/15-17) and one dated 21 January 2002 (T4/46-47), and gave evidence by telephone.
28. In his report of the 15 August 2001, Dr May opined that the applicant’s GAD had its origins while the veteran was serving in Singapore and that his AD is secondary to his GAD. In arriving at this opinion, Dr May particularly referred to the applicant witnessing the exploding cannon shell and injuries to colleagues in the setting of combat readiness.
29. In his further report of 21 January 2002, Dr May recognised that the exploding cannon shell occurred some four years prior to the applicant’s operational service. The Tribunal notes that Dr May, in his report, states that the veteran’s condition had worsened because his brother-in-law had recently died of cancer, this being first diagnosed in March 2001. Dr May said:
“His brother-in-law was around the same age as Mr Haydon and this had reminded him of his risks and his mortality since Mr Haydon has suffered from Cancer himself. He seemed to be very depressed, anxious and preoccupied at this appointment. The worry was expressed both verbally and non-verbally. He also carried recent worries about a lump in his left breast which had been biopsied and found to be benign but he of course had thought the worst. His alcohol consumption has not changed at all and the severe symptoms persist as:
1.Tension
2.Excessive worrying
3.Short-temperedness
4.Impaired concentration.”
30. The applicant told the Tribunal that he agreed “absolutely” with what Dr May had written and that he was terribly distressed about the death of his brother-in-law.
31. In his second report (and in his evidence by telephone), Dr May revised his opinion about the stressors and said that the most severe stressor the veteran faced was the threat of imminent attack by Indonesian forces. The Tribunal notes that Dr May makes no mention of the sidewinder incident in his second report; and makes a passing reference to this incident in his first report. In his evidence by telephone, Dr May confirmed that, based on what the applicant told him, he dated the applicant’s symptoms to his operational service. He said that he did not think the veteran’s bowel cancer contributed to his symptoms, the cancer being treated very successfully (the applicant rejoicing in this outcome), and the applicant giving him no history of anxiety resulting from the cancer. When referred to what the applicant stated on his claim form (see paragraph 23 above), Dr May said it was totally in conflict with what the applicant had told him.
32. It was Dr May’s oral evidence that the events which caused the applicant’s GAD were the risk of Indonesian invasion, the stress of long hours of work, the interpersonal conflicts resulting from living in close quarters, the constant noise and the sidewinder missile malfunction. He said he could not date any of the applicant’s symptoms of anxiety back to the exploding cannon shell incident.
33. When questioned about the applicant suffering from Depressive Disorder, Dr May said that the applicant’s presentation did not support a diagnosis of Depressive Disorder, in his opinion.
Submissions
34. It was submitted by Ms Carter-Nicoll that the applicant first suffered GAD during his service in Singapore and that this condition resulted from experiencing a severe psychosocial stressor at that time. It was contended that the sidewinder missile incident and the threat of Indonesian invasion of Singapore were the major severe psychosocial stressors, within the meaning of that term in the relevant SoP. With respect to the sidewinder missile malfunction, it was submitted that the applicant thought he was going to die. With respect to the threat of invasion it was contended that this was an identifiable occurrence and the applicant was in fear for his life at the relevant time. It was contended that the applicant’s AD was secondary to his GAD and that the applicant satisfied factor 5(a) of the relevant SoP namely “suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse”.
35. In considering the meaning of the phrase “an identifiable occurrence that invokes feelings of substantial distress in an individual”, Ms Carter-Nicoll referred the Tribunal to Re Parr and Repatriation Commission [2003] AATA 93, where the Tribunal stated:
“It was suggested by the Respondent that the Applicant’s experience over two trips to Vung Tau does not amount to an “identifiable occurrence” in that it is not a single or individual occurrence at a particular instant. The Tribunal rejects this suggestion given that the examples given in the SoP if ‘identifiable occurrence(s)’ include such things as major illness and major financial problems, both of which could occur over a period of time rather than instantaneously.”
And to O’Neil v Repatriation Commission [2001] FCA 1492, where his Honour Justice North said:
“The task of the Tribunal in applying the relevant SoPs is to hear the evidence generally and determine whether it can be satisfied on the appropriate standard that the applicant actually subjectively felt anxious or stressed. There are a number of elements in this part of the inquiry.
It is open, of course, for the Tribunal to reject the evidence of the applicant or others that the alleged feelings were in fact experienced. It is also open to the Tribunal to find that whatever feelings were experienced did not amount to the required anxiety or stress. Finally, it is open to the Tribunal to determine that the circumstances did not amount to an occurrence within the meaning of the definition. Beyond considering these matters, there is no other or further function required to be performed by Tribunal in applying the SoPs.”
36. It was the applicant’s contention that the veteran suffered from feelings of anxiety after the sidewinder incident which he perceived as life threatening, similar to being shot at and that he suffers AD secondary to his GAD. As such it was submitted that the applicant’s GAD and AD are war caused.
37. Mr McAninly submitted that neither of the two stressors relied upon by the applicant satisfied the requirements of a severe psychosocial stressor as defined in the relevant SoP. The respondent referred the Tribunal to Re Robinson and Repatriation Commission [2002] AATA 894 in its consideration of this matter.
38. With respect to the sidewinder incident, Mr McAninly submitted that the incident could not fit the definition of a severe psychosocial stressor when considered in the context of the applicant having helped load missiles on many occasions, where in this particular event he was aware that the safety pins were in place, that at the time of the event and subsequently he had not asked anyone about what had happened, that at the time he had been some six years in the RAAF, that the incident was quickly resolved and that the applicant, immediately after the event, went on with his normal duties of refuelling the aircraft.
39. With respect to the exploding cannon shell, Mr McAninly noted that this incidence occurred some four years prior to the applicant’s operational service and that Dr May had initially relied on this as a relevant stressor and opined that the applicant’s GAD and AD appeared to have an onset after this event (as did the applicant in respect of him starting to drink heavily).
40. It was submitted that the onset of the applicant’s claimed condition of GAD was in 1999 and that the precipitating factor was the applicant’s bowel cancer, diagnosed in 1999.
41. Mr McAninly submitted that the necessary factors of the relevant SoPs for AD are not satisfied by the applicant. In so submitting, Mr McAninly submitted that the claimed stressors do not satisfy the SoP template, that the applicant’s AD existed prior to operational service and prior to claimed stressors and the applicant did not experience a severe stressor prior to any worsening of alcohol dependence or alcohol abuse. It was submitted that the decision under review should be affirmed.
Consideration
42. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“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 s196B(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 s196B(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 s120(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.”
43. As has been already indicated, the Tribunal is reasonably satisfied the applicant suffers from GAD and AD and so finds.
44. After consideration of all the material before it, the Tribunal finds that the material points to the hypothesis as contended by the applicant. And the Tribunal, as stated in paragraph 11 above, accepts that there is in force relevant SoPs namely:
§ No 1 of 2000; and
§ No 76 of 1998.
45. Turning firstly to GAD.
46. The initial question before the Tribunal is when was the clinical onset of this condition.
47. The respondent has submitted that the onset was in 1999 and that the precipitating factor was the applicant’s bowel cancer diagnosed in 1999. Dr May has opined that the applicant’s GAD had a clinical onset during the applicant’s service in Singapore.
48. The Tribunal has considered the inconsistencies in Dr May’s evidence and the applicant’s evidence, carefully set out by Mr McAninly in his written submissions. The Tribunal is troubled by these inconsistencies but at this stage makes no finding as to the question of clinical onset. The Tribunal is of the view that it would be appropriate in the first instance, to consider whether the applicant experienced a severe psychosocial stressor while on operational service in Singapore. If the answer to this question is in the affirmative then the question of clinical onset becomes relevant. If the answer to the question is in the negative, the applicant’s hypothesis cannot be a reasonable hypothesis.
49. The meaning of the phrase “an identifiable occurrence” has not been addressed by the Federal Court, nor is it further defined in the relevant SoP. There have been a number of Tribunal decisions which indirectly consider the meaning of the phrase.
50. The Tribunal has considered the following cases:
§Re Robinson and Repatriation Commission [2002] AATA 894
§Re Parr and Repatriation Commission [2003] AATA 93
§ReHurn and Repatriation Commission [2001] AATA 907
§ReLees and Repatriation Commission [2002] AATA 98
§ReWalsh and Repatriation Commission [2001] AATA 483
§Re Webb and Repatriation Commission [2003] AATA 203
§Re Peace and Repatriation Commission [2003] AATA 1013
51. The Tribunal has not seen fit to set out in detail what the Tribunal has said in these various decisions. However, based on its consideration of these decisions, the Tribunal is of the view that the essential elements to be applied when considering a particular “occurrence” are as follows:
a)An identifiable occurrence can be a single or an individual event or an ongoing event.
b)The occurrence must be specific, identifiable and circumscribed rather than “an ordinary course of life”.
c)The examples given in the definition are illustrative and not exclusive. However, the examples are illustrative of occurrences that would evoke feelings of substantial distress in an individual. The occurrence cannot simply be distressing. The distress must be substantial.
d)The identifiable occurrence must be objectively understood and the feelings evoked must result from a subjective response to the identifiable occurrence.
52. The Tribunal has considered each of the claimed stressors within the context of the essential elements as set out above and what his Honour Justice North said in O’Neil v Repatriation Commission (supra).
53. The Tribunal accepts that the exploding cannon shell occurrence resulted in the applicant experiencing a severe psychosocial stressor. However, the Tribunal also finds that this occurrence is not connected with the applicant’s operational service and the Tribunal is reasonably satisfied that the applicant is not suffering any psychiatric condition as a result of this event.
54. The Tribunal accepts that the work stressors claimed by the applicant (as set out in paragragh 16 above) were distressing. However, the Tribunal finds that the stressors were not severe psychosocial stressors within the meaning of that term.
55. Turning then to the sidewinder missile event. The Tribunal finds that this event took place as described by Mr McIntosh and that the applicant was engaged in the aircraft servicing duties at the place and time of the event. The Tribunal accepts that the applicant had momentary fears of an explosion and of being in a dangerous situation. However, on his own evidence, he was aware that safety pins were in place which would prevent the rocket motor igniting and firing the missile, that the malfunction was corrected within a matter of seconds and that he then continued with his normal duties, assisting in refuelling the jet aircraft. While the Tribunal accepts that the applicant suffered from some distress at the time, the Tribunal is satisfied, beyond reasonable doubt, that the feelings experienced by the applicant do not amount to the required anxiety or stress to fit the template of the SoP and the Tribunal finds that the sidewinder missile event was not an event which caused the applicant to experience a severe psychosocial stressor within the meaning of that term and the relevant SoP.
56. With respect to the possible Indonesian invasion, the Tribunal is mindful that at the time the applicant was serving in Singapore, tensions between Indonesia, the fledgling Malaysia, and allied powers had escalated to the point where Indonesia mounted armed incursions onto the south west and south east coast of the Malay Peninsula and in the Malacca Straits. Clearly the applicant’s sudden deployment to Singapore was part of the allied response to position forces to counter Indonesian aggression. The Writeway Research report states:
“23 It is accepted that at the time of the air ‘alert’ scenario on Singapore Island in September 1964 the possible intentions of the Indonesian forces in launching offensive operations were of some concern, particularly after the insertion of Indonesian paratroopers on the Malay Peninsular in the LABIS area on 5 Sep 64 (one week prior to the arrival of the Veteran on attachment).
24 With the benefit of hindsight it is now known that the Indonesians did not engage any of the defended or ‘hard targets’ on the island of Singapore.”
57. As such the Tribunal accepts that this situation is correctly defined as “an identifiable occurrence”.
58. What is more problematic is whether the occurrence evoked feelings of substantial distress in the applicant. The Tribunal is not impressed by the applicant drawing a parallel between the Japanese invasion and capture of Singapore, and the circumstances in which he found himself. Nor can the Tribunal accept the applicant’s contention that he was able to assess the preparedness of Singapore to resist attack by undertaking bus and taxi rides around the island on part of one of his days off, at a time, on his own evidence, he was exhausted and drinking heavily. Furthermore, the Tribunal is troubled by the applicant’s evidence that he did not discuss any of his concerns with his superior officers, even though he said he had the highest regard for some of these officers.
59. The Tribunal does not accept that the applicant was able to put himself in a position to properly assess the adequacy of Singapore’s defensive measures. However, be that as it may, the Tribunal accepts that the applicant, based on his own reasoning, and the set of circumstances as he saw them, did have feelings of substantial distress. The Tribunal therefore finds that the veteran did experience a severe psychosocial stressor during his operational service in Singapore.
60. The question then is when was the clinical onset of the applicant’s GAD.
61. As indicated above, the respondent has submitted that the clinical onset of the applicant’s GAD was in 1999 whereas the applicant’s treating psychiatrist has put the clinical onset at the time of the applicant’s service in Singapore.
62. Mr McAninly has comprehensively put his case for clinical onset in 1999. However, the Tribunal, on balance, accepts the opinion of Dr May, the applicant’s treating psychiatrist. The Tribunal is reasonably satisfied that the applicant’s GAD had a clinical onset in September 1964.
63. The Tribunal therefore finds that the applicant’s hypothesis fits the template of the relevant SoP for GAD in that the applicant experienced a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder, and the Tribunal finds that the applicant’s hypothesis is a reasonable hypothesis.
64. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant suffers from war caused GAD.
65. Turning then to Alcohol Dependence.
66. The Tribunal, after consideration of all of the material before it and the submissions of both parties, is reasonably satisfied that prior to deployment to Singapore the applicant had his drinking under control and was drinking at a “social level”. The Tribunal finds that the applicant commenced drinking heavily while in Singapore at which time, based on the Tribunal’s earlier finding he was suffering from a psychiatric disorder.
67. The Tribunal therefore finds that the applicant’s hypothesis with respect to AD fits the template of the relevant SoP in that he was suffering from a psychiatric disorder at the time of the clinical onset of AD.
68. The Tribunal therefore finds that the applicant’s hypothesis is a reasonable hypothesis.
69. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining the applicant suffers from war caused AD.
70. The Tribunal sets aside the decision under review and in substitution therefore determines that Hans Hayden suffers from war caused Generalised Anxiety Disorder and Alcohol Dependence, with date of effect of 5 April 2001.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 3 March 2004
Date of Decision 30 April 2004Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Sciacca & Associates
For the Respondent Mr D McAninly, Departmental Advocate
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