Howard John Kirk and Repatriation Commission
[2013] AATA 773
•25 October 2013
[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, 196BCases
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 359Secondary Material
Statement of Principles No 5 of 2008DSM-IV-TR
REASONS FOR DECISION
The Hon R Nicholson, Deputy President
25 October 2013
INTRODUCTION
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.
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.
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.
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.
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.
The applicant applied to the Tribunal for a review of the VRB’s decision.
On 6 March 2009 Deputy President S D Hotop and Dr P A Staer, Member, affirmed the decision under review.
On 18 April 2012 the applicant applied to the Tribunal for a review of a further decision of the VRB on 11 December 2012 that the applicant’s PTSD was not related to his service.
To some degree the resolution of the application for review now made by the applicant to this Tribunal involves the same body of evidence as that considered by Deputy President Hotop and Dr Staer. To that extent, and where otherwise appropriate, these reasons will adopt what was set out in their reasons of the 6 March 2009, while at the same time considering the effect of new evidence presented to the Tribunal on this application.
RELEVANT LEGISLATION
There have not been material changes in the VE Act or Statement of Principles since they were considered by the Tribunal on the 6 March 2009. To preserve clarity I set them out again here.
The VE Act
Section 9(1) of the VE Act relevantly provides:
“… 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:
…
(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;
…”
Section 7(1) relevantly provides:
“…for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;…
…”
The word “disease” is defined in s 5D(1) as follows:
“disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
Section 120, which deals with standard of proof, relevantly provides:
“(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.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) … 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 …;
(b)that the disease was a war-caused disease …; or
(c)that the death was war-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.
Note: This subsection is affected by section 120A.
…”
Section 120A relevantly provides:
“…
(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.
Note: See subsection (4) about the application of this subsection.
(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.”
Section 196B relevantly provides:
“(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …
Determination of Statement of Principles
(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; or
(ca)warlike or non-warlike service rendered by members;
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.
…
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
…”
The Statement of Principles
The relevant Statement of Principles (‘SoP’), as determined by the Repatriation Medical Authority under s 196B(2) of the VE Act, is as follows:
The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a SoP concerning PTSD. The SoP which is presently in force is:
Statement of Principles concerning posttraumatic stress disorder No 5 of 2008.
That SoP (which revoked Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, concerning post traumatic stress disorder) relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about posttraumatic stress disorder and death from posttraumatic stress disorder.
(b)For the purposes of this Statement of Principles, ‘posttraumatic stress disorder’ means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(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:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(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:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(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)hypervigilance;
(v)exaggerated startle response; 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.
…
(d)In the application of this Statement of Principles, the definition of ‘posttraumatic stress disorder’ is that given at paragraph 3(b) above.
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that posttraumatic stress disorder and death from posttraumatic stress disorder can be related to relevant service rendered by veterans, …
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
…
Other definitions
9.For the purposes of this Statement of Principles:
‘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;
…
‘DSM-IV-TR’ means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000;
…”
THE EVIDENCE
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.
A couple of weeks later on 3 June 1969 while the Vampire was on exercises, the HMAS Melbourne collided with the USS Frank E Evans. The applicant arrived on the Vampire after the survivors had been rescued, but he assisted in recovering debris from the water. He did not witness any casualties, but knew that there were dead crewmen below them. He found it upsetting to see the damage that could be caused by such a collision.
About eight weeks later on 29 July 1969 the applicant suffered a serious water skiing accident in Singapore when he fell from a boat and was run over by the propeller. He suffered serious cuts to his right arm, right trunk, chest and right leg. He did not lose consciousness, but lost a lot of blood and received over two thousand stitches under general anaesthetic. He was hospitalised in Singapore and eventually evacuated to Sydney on 2 October 1969. In his belief he fell from the boat due to poor concentration which had been deteriorating since the incident in Vung Tau Harbour.
After returning to Sydney, the applicant stated he remained extremely anxious and became increasingly depressed, until his discharge on 4 January 1961. Since his discharge he has suffered ongoing psychiatric problems and had been treated by a number of psychiatrists. He has suffered six breakdowns resulting in his admission to Hollywood Clinic, the most recent being July 2013.
The applicant also said in his statement that the water skiing accident, while being traumatic and distressing, was not what caused him long term problems. He did not “re-live” the water skiing accident, but he did re-live the “scare charges” incident. He could readily talk about the water skiing accident but avoided talking about the “scare charges” incident and found it upsetting to think about it. He avoided loud noises and even sudden loud noises caused him significant distress. He has difficulties with social interaction and was constantly in a state of hyper-vigilance. He has no difficulty being on boats and has taken up speed boat racing as a hobby.
In cross-examination it was put to the applicant that the Record of Proceedings in relation to HMAS Vampire in May 1969 (Exhibit A) stated that the Vampire arrived off Vung Tao at 5:30am on 19 May, anchored at 6:45am and proceeded out of the harbour at 11:00am on that day. The applicant accepted that the “scare charges” incidents must have occurred during the morning watch from 4:00am to 8:00am on that day, not during an afternoon watch from 4:00pm to 8:00pm as he had initially thought.
The applicant also said that although that Report had suggested that ‘small arms fire’ followed the “scare charges”, he had not heard any such sound. However, he was in an enclosed area and would not necessarily have heard it.
The applicant said that although the above Report on the Vampire referred to eight ‘scare charges’ having been used, he could only recall having heard two. He said that the first charge was away from the ship and the second was at the side of the ship.
The applicant also said in cross-examination that he could have undertaken the work on the lights on the 7 May 1969, a date suggested as possible by the contents of the Report.
Additionally, in cross-examination the Applicant said that he had not realised that the ship was not under real attack until he had gone to the bow of the vessel after leaving the engine room when he had come off watch and had the opportunity to speak to other personnel.
Various Medical Reports Concerning Applicant 1969-1975
The Tribunal’s decision on the 6 March 2009 sets out and summarises the reports of various persons whom the applicant consulted between 1969 and 1975. I adopt what was said by the previous Tribunal in previous paragraphs 26 to 31.
In 1999 the Applicant consulted Dr Fellows-Smith Psychiatrist who provided a report dated 1 October 1999. The report concluded that the applicant had Generalised Anxiety Disorder, directly due to his wartime service in Vietnam. In addition the applicant may have non-active service related stress disorder that may or may not fulfil the criteria for PTSD. I understand that he has been assessed by Dr Fletcher to this end.
The applicant also consulted Dr Kay, Psychiatrist who provided a report dated 30 September 2004. He was initially of the view that Dr Kirk’s experiences predominately related to being run over by the boat in Singapore. However he was of the view that the applicant suffers from PTSD, not Generalised Anxiety Disorder. He noted that it was relating to the scare charges rather than the water skiing accident. He had no doubt that the Applicant suffers from PTSD but that there is “some debate about the cause.” I otherwise adopt what the Tribunal said in its reasons of 6 March 2009 in paragraphs 21 to 23.
It is relevant to note that provision was not made in law for recognition of the condition of PTSD until 1980.
In a letter dated 6 December 2010 Dr Kay remains of the opinion that the applicant is suffering from a serious psychiatric condition. He advised that he was initially of the opinion that the applicant suffers from a PTSD which arose as a consequence of a water skiing accident in Singapore. However, he subsequently revised his opinion and said that it arose as a result of him experiencing a number of close under water explosions while stationed below the water line on an Australian Navy ship in harbour in South Vietnamese waters. He noted it was loud noises and confined spaces which caused the applicant distress. He stated that the applicant had told him that when he had experienced the nearby detonation of scare charges for a moment or two, before he was able to ascertain what the explosion was the applicant felt that his life was in peril and that he was about to die.
Dr Lance Risbey consultant psychiatrist gave a report dated the 20 February 2012. In doing so he reviewed the entire history of the applicant’s medical consultations. Dr Risbey concluded from his independent assessment of the applicant, conducted by interview and mental state examination prior to reviewing other documents, that the applicant experienced severe threat to his life, as he perceived it (and with the information he had) by the exploding scare charges on 19 May 1969 while he was in the engine room of the Vampire serving operationally in Vietnam waters. He found himself in agreement with Dr Kay’s diagnosis from 2006 onwards. In his view it was a terrifying experience of scare charges exploding just outside the ship’s hull which caused the applicant’s PTSD and that the motor boating incident was not a significant contributor to that condition.
ANALYSIS AND FINDINGS.
The relevant injuries/diseases
It is common ground that the applicant suffers from PTSD. The Tribunal finds, as did the previously Tribunal in its reasons on the 6 March 2009, that the applicant suffers from PTSD and does not suffer from Generalised Anxiety Disorder. This is a “disease” for the purposes of the VE act.
Is the Applicants PTSD a War-caused disease, within the meaning of section 9 of the VE Act?
This question, is in accordance with section 120 (1) of the VE Act, to be determined here as it was for the previous Tribunal on the 6 March 2009 on the “reverse criminal” standard of proof. That is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is not sufficient ground for making that determination.” Pursuant to section 120 (3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, is of the opinion that it “does not raise a reasonable hypothesis connecting… disease…. with the circumstances” of the applicants operational service. Being a statement of principles determined under section 196B (2) of the VE Act, a raised hypothesis connecting the relevant disease with the circumstances of the applicants operational services will be “reasonable” only if that SOP upholds that hypothesis; see section 120A (3) of the VE Act.
As was the case with the Tribunal reasons for the 6 March 2009, for the purpose of determining whether the applicants PTSD is a war-caused disease, within the meaning of section 9 of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court; see Bull v Repatriation Commission (2001) 188 OLR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal (2007) 96 ALV 536 at 543; Byrne v Repatriation Commission (2007) 97 ALD 359 at 366.
Does the material before the Tribunal raise a hypothesis connecting the applicant’s PTSD with the circumstances of his operational service?
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.
I am left in no doubt that the two explosions of the “scare charges” heard by the applicant did convey and was subjectively experienced by him as conveying the risk of death or serious injury to physical integrity. In my opinion this means that the applicant experienced ‘a life-threatening event’ and that was a category 1A stressor which was experienced before the technical onset of the PTSD.
I find considerable support for this conclusion in the latest opinions given by Dr Risbey in his considered review of all the reports relating to the applicant and by Dr Kay in changing his previously expressed opinion.
This Tribunal is therefore of the opinion that the material before it does raise an hypothesis which accords, or is consistent with, the 2008 SoP.
CONCLUSION
The Tribunal is, according, of the opinion that the material before it does raise a reasonable hypothesis connecting the applicant’s PTSD with the circumstances of his operational service which is upheld by the 2008 SoP. It follows, pursuant to section 120A(3) of the VE Act, that the material before the Tribunal does raise a reasonable hypothesis connecting the applicant’s PTSD with the circumstances of his operational service.
In accordance with section 120(3) of the VE Act the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s PTSD is not a war-caused disease.
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.
I certify that the preceding 48 (forty eight) paragraphs are a true copy of the reasons for the decision herein of ....(Sgd) T Freeman..........
Associate
Dated 25 October 2013
Date(s) of hearing 15 October 2013 Counsel for the Applicant Mr Robert Grayden Solicitors for the Applicant Hammond Legal Advocate for the Respondent Mr C Ponnuthurai
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