Howard John Kirk and Repatriation Commission

Case [2013] AATA 773

[2013] AATA 773  

Division VETERANS’ APPEALS DIVISION

File Number(s)

2013/0073

Re

Howard John Kirk

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

The Hon R Nicholson, Deputy President
Date 25 October 2013
Place Perth

Decision Summary

The decision, of the Veteran’ Review Board made on 11 December 2012, is set aside and, in substitution therefor, it is decided that the applicant’s post-traumatic stress disorder is related to his operational service.

...(Sgd) R Nicholson............

The Hon R Nicholson, Deputy President

Catchwords

VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Royal Australian Navy from January 1967 to January 1971 – applicant rendered operational service 14–25 May 1969 – applicant suffers from posttraumatic stress disorder ("PTSD") – material before Tribunal raises hypothesis that applicant’s PTSD connected with operational service - Statement of Principles concerning posttraumatic stress disorder No 5 of 2008 - whether hypothesis caused by veteran’s operational service

Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5D(1), 7(1), 9(1), 22, 120, 196B

Cases
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 188 OLR 756
Woodward v Repatriation Commission (2003) 131 FCR 473
Collins v Administrative Appeals Tribunal (2007) 96 ALV 536
Byrne v Repatriation Commission (2007) 97 ALD 359

Secondary Material
Statement of Principles No 5 of 2008

DSM-IV-TR

REASONS FOR DECISION

The Hon R Nicholson, Deputy President

25 October 2013

INTRODUCTION

  1. The applicant, Howard John Kirk, served in the Royal Australian Navy (“RAN”) from 14 January 1967 to 4 January 1971.  During that period he rendered “operational service”, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE ACT”), from 14 May 1969 to 25 May 1969 on board HMAS Vampire in Vietnam.

  2. The applicant suffered from two conditions accepted as war caused by the Repatriation Commission (“the respondent”) for the purposes of the VE Act, namely, bilateral sensor neural hearing loss, and tinea, and he presently receives a disability pension at 40% of the “general rate” in accordance with s 22 of the VE Act.

  3. On 2 December 2004 a delegate of the respondent decided that the applicant was suffering from “post-traumatic stress disorder” (“PTSD”) and that such condition was not related to his operational service and, therefore, was not a war-caused condition for the purposes of the VE Act.

  4. On 3 January 2007 a delegate of the respondent decided that the applicant was suffering from “ischaemic heart disease” but that that condition was not related to his operational service and, therefore, was not a war-caused condition for the purposes of the VE Act.

  5. On 21 August 2008 the Veterans’ Review Board (“VRB”) decided that the applicant’s conditions of PTSD and ischaemic heart disease were not war-caused conditions for the purposes of the VE Act and it accordingly affirmed decisions of the respondent in those respects.

  6. The applicant applied to the Tribunal for a review of the VRB’s decision.

  7. On 6 March 2009 Deputy President S D Hotop and Dr P A Staer, Member, affirmed the decision under review.

  8. On 18 April…

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Details
AGLC
Howard John Kirk and Repatriation Commission [2013] AATA 773
Case
[2013] AATA 773
Decision Date

CaseChat Overview and Summary

Howard John Kirk, the applicant, sought to have his posttraumatic stress disorder (PTSD) recognised as related to his operational service in the Royal Australian Navy from January 1967 to January 1971, specifically during his service in Vung Tau Harbour, Vietnam, from 14 to 25 May 1969. The dispute involved whether the PTSD experienced by the applicant was connected to his operational service. The case was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue was whether the hypothesis that the applicant's PTSD was connected with his operational service was substantiated by the evidence. This hinged on whether the applicant had experienced a severe stressor as defined in the relevant Statement of Principles concerning posttraumatic stress disorder No 5 of 2008.

The Tribunal examined the applicant's experience of hearing "scare charges" explode underwater outside the hull of HMAS Vampire on 19 May 1969 while he was on watch in the engine room, which was below the waterline. The Tribunal found that this experience constituted a "severe stressor" as it involved a threat to the applicant's life, which he subjectively perceived as a risk of death. The Tribunal concluded that the applicant's PTSD was a war-caused disease under section 9 of the VE Act, and thus related to his operational service.

The Tribunal set aside the previous decision of the Veterans' Review Board (VRB) and substituted a decision that the applicant's PTSD is related to his operational service. This decision was based on the Tribunal's opinion that the material before it raised a reasonable hypothesis connecting the applicant's PTSD with his operational service, specifically his experience of the severe stressor of hearing "scare charges" explode underwater outside the hull of HMAS Vampire in Vung Tau Harbour on 19 May 1969.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence before the Tribunal comprises:-·The T-Documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);·Exhibits A, B and C tendered by the applicant;·Exhibit 1 tendered by the respondent; and·The oral evidence of the applicant.The Applicant’s Evidence In his written statement, the applicant said that he had enlisted in the Navy on 14 January 1967 as an 18 year old. He had trained as a “stoker” and served for a period of 4 years until he was discharged on 4 January 1971. He stated that he had not wanted to be discharged but at the time was suffering from depression. The applicant stated he served on the HMAS Vampire and completed operational service in Vietnamese waters from 14 May 1969 to 25 May 1969, the Vampire having acted as an escort to HMAS Sydney and HMAS Melbourne. The applicant’s written statement was that on 19 May 1969 he was on what was called the “dog’s watch” from 4pm until 8pm and then from 4am until 8am. His recollection is that the Vampire sailed into Vung Tau Harbour in the afternoon, although he accepts that the records indicate that it could have been in the morning. He was on duty in the engine room at the time. For him it was the first and only time that he was in an official “war zone” and he was apprehensive about what might happen. He felt a whole different prospect knowing this was “for real” and not just exercises. While on that duty it was not possible for him to go up on deck for any reason. The ship’s boilers were working on “low fire” and one propeller was kept turning. He believed this meant the ship was at some risk. He knew they were in enemy waters and it was possible that it could be attacked. He felt that the Vampire was very exposed and was a “sitting duck” for the enemy. The applicant stated that he could recall putting up or assisting with putting up flood lights on the ship but could not be sure whether that was inside or outside of the harbour. While at anchor the vessel was either protected by divers in the water or “scare charges” thrown from boats that circle the ship or from the deck. He had never received any training in relation to scare charges nor any warning if they were about to be discharged. When the Vampire sailed into Vung Tau Harbour he was on duty in the engine room which was below the water line and extremely vulnerable if the hull was breached. The personnel in the engine room were surrounded by pipes full of superheated steam which made them extremely vulnerable. The applicant’s recollection was that the ship came to a rest and after a period there were a series of very loud explosions which shook the ship. He said the explosions were completely unexpected and he thought that the ship was under attack. The explosions caused the generators to trip and cast the engine room into total darkness. He was absolutely terrified and his first reaction was that he was going to die. The expression he uses was that “I shit myself” with terror and fear. He stated he thought the hull had been breached and recalled asking himself where the hole in the ship was. In his view the ship had either been hit by a torpedo or an enemy mine. He recalls thinking “how long have I got to live”, as he knew the risk created by the steam pipes. He noted that the Petty Officer on the site had gone “white”. His fear lasted for some minutes until the lights went back on and the scare charges stopped and everything calmed down. He said it was only later that he found out that the scare charges hadn’t been dropped and there was no immediate danger. After the experience he did not feel the same and started to become extremely anxious and his concentration and attitude deteriorated.

Decision

Reasons for decision

The Tribunal concludes, pursuant to section 120(1) of the VE Act, that the applicant’s PTSD is a war-caused disease within the meaning of section 9 of the VE Act. DECISION For the above reasons, the Tribunal decides that the decision of the VRB made on 11 December 2012 be set aside and a decision substituted that the applicant’s PTSD is related to his operational service.

Ratio Decidendi

Legal Principle Established

The Tribunal, having considered the whole of the material before it, is of the opinion that such material raises a hypothesis connecting the applicant’s PTSD with the circumstances of his operational service. That hypothesis, in general terms, is as follows:·The applicant’s experience of hearing “scare charges” exploding at regular intervals, without warning, underwater outside the hull of HMAS Vampire on 19 May 1969 while he was watch in the engine room (which was below the water line) of that ship which was then in Vung Tau Harbour, Vietnam (a war zone) resulted in him contracting PTSD.Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s PTSD with the circumstances of his operational service? The only provision of the SoP which is contended on behalf of the applicant might arguably uphold the raised hypothesis in the present case, is 6(a), namely that the applicant experienced a category 1A stressor before the clinical onset of PTSD. The only “Category 1A stressor” relied upon is that in paragraph 9(a) that the applicant experienced ‘a life-threatening event’. The definition of “experiencing a severe stressor” in the 1999 SoP was explained by the Federal Court (Mansfield J) in Stoddart v Repatriation Commission (2003) 74 ALD 366 at 379 as follows:“[55] In my judgment the language of the definition of 'experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”His Honour had earlier (at [52]) accepted that the word “threat” in that definition bears its “common meaning” as defined in The Macquarie Concise Dictionary, namely:“… an indication of probable evil to come; something that gives indication of causing evil or harm.”His Honour’s interpretation of the definition of “experiencing a severe stressor” in the SoP was followed by the Full Federal Court in Woodward v Repatriation Commission (2003) 131 FCR 473, and was upheld on appeal by the Full Court in Repatriation Commission v Stoddart (2003) 134 FCR 392.“ In the Tribunal’s opinion, the applicant’s evidence regarding his subjective reaction to hearing “scare charges” exploding under water outside the hull of HMAS Vampire in Vung Tau harbour on 19 May 1969 does accord with “experiencing a severe stressor” (as defined in Clause 6(a) and 9(a) of the SoP) for the purpose of Clause 5 in the SoP. The applicant’s evidence was that he was absolutely terrified and his first reaction to the sound of the scare charges which he heard was that “he was going to die”. He formed the view the ship had been hit either by a torpedo or an enemy mine and he thought about how long he had left to live, particularly because of the hazard of the steam pipes.