Howorth and Repatriation Commission

[2011] AATA 923

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 923

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0958

VETERANS’ APPEALS  DIVISION		)
Re		Georgina Howorth

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Deputy President J W Constance

Date21 December 2011

PlaceMelbourne

Decision

1.    The decision under review, being the decision of the Repatriation Commission made 22 February 2010 is set aside. 

2.    In substitution for the decision set aside it is decided that the death of the late Mr Ross on 23 December 2009 was “war-caused” within the meaning of the Veterans’ Entitlements Act 1986 (Cth).

.......(sgd J W Constance).......

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – operational service with the Royal Australian Navy – whether death was war-caused – suicide - depressive condition - alcohol abuse - decision under review set aside

Hardman v Repatriation Commission (2004) 82 ALD 433

Repatriation Commission v Deledio (1998) 83 FCR 82

Woodward v Repatriation Commission [2003] FCAFC 160

Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 120(1), 120(3), 120(6), 120A(3) and 120A(4)

REASONS FOR DECISION

21 December 2011   Deputy President J W Constance

INTRODUCTION

1.      Ms Howorth is the widow of the late Mr Ross who died on 23 December 2009.  From 22 August 1990 until 14 December 1990 Mr Ross rendered operational service as a member of the Royal Australian Navy.

2.      In 2010 Ms Howorth claimed benefits under the Veterans’ Entitlements Act 1986 (Cth) on the basis that her late husband’s death was “war-caused”.  The Repatriation Commission rejected this claim and the Veterans’ Review Board affirmed the Commission’s decision.

3.      For the reasons which follow the decision of the Commission will be set aside and a decision that the late Mr Ross’ death was war-caused will be substituted.

MATERIAL BEFORE THE TRIBUNAL

4.      In addition to the evidence of Ms Howorth, the following material is before the Tribunal:

Exhibit	Description
A1	Copy of a statement of Georgina Howorth dated 10.3.2011
A2	Copy of a statement of Andrew Ross (undated)
A3	Copy of an alcohol questionnaire completed by Andrew Ross dated 8.2.2005
A4	Copy of a lifestyle questionnaire completed by Andrew Ross dated 9.2.2005
A5	Copy of an application for a claim for disability pension completed by Andrew Ross dated 8.12.2004
A6	Copy of the s 37 documents
R1	Copy of the Veteran’s Review Board – Decision & Reasons dated 28.11.2006
R2	Copy of a Writeway report dated 22.7.2011 and a copy of the letter of instruction dated 16.5.2011

Mr Ross’ Record of Service [1]

[1] Exhibit A6.

5.      Mr Ross was born in 1963.  He enlisted in the Royal Australian Navy on 7 January 1980 and was discharged on 26 April 2000.

6.      From 22 August 1990 until 14 December 1990 Mr Ross served as a member of the crew of HMAS Adelaide.  It is not in dispute that during this period Mr Ross rendered operational service.

Writeway Research Service Pty Ltd report [2]

[2] Exhibit R2.

7.      HMAS Adelaide sailed from Freemantle Western Australia on 22 August 1990 to join the Multinational Naval Force in enforcing United Nations Security Council sanctions against Iraq.  Iraq had invaded Kuwait on 2 August 1990.  The deployment was named Operation Damask.  HMAS Adelaide and other ships were to conduct blockade and quarantine operations in the Gulf of Oman.

8.      After HMAS Adelaide left Freemantle the crew was engaged in intensive training, as it had been en route to Freemantle.  This training emphasised Anti Air Warfare (AAW) and Damage Control. It involved frequent simulated air and missile attacks and at times the ship was left “dead in the water, without lights, filled with thick smoke and with compartments said to be filled with water.  Simulated casualties forced personnel to exercise initiative and take action immediately in difficult circumstances”.  Emphasis was also placed on nuclear, biological and chemical defence.

9.      In a statement dated 21 July 2011, attached to the report, Rear Admiral Dovers, RAN (Rtd) stated, in part:

They then completed an extremely intense workup enroute to the Middle East that was designed to prepare them for combat. This included live missile and gun firings, simulated attacks by FA-18 and F-111 aircraft, and intensive damage control, chemical and biological defence exercises. I had undertaken such training with both the Royal Navy and the Standing NATO Force Atlantic, but this was the most intense period that I had experienced.

Although the ships did no engage in hostilities during the three months in the area of operations reminders of the recent missile attacks against merchant ships could be seen in the derelict tanker MV SURF CITY, which was anchored off Fujayrah having suffered a major fire after being struck by an anti-ship missile during the Iran-Iraq war. The gaping hole and twisted metal provided a sobering reminder to the personnel who lined the upper deck of the consequences of war. Additionally, ADELAIDE frequently sighted major warships and attack aircraft deployed to the area by other nations that had committed forces to operation. These included a large group of amphibious ships carrying US Marines. There was no doubt that we were part of a large multinational force poised for action.

The ship operated in Defence Watches throughout so that most personnel were closed up for six hours and then stood down for six hours. … The ship went to Action Stations only once during the period in the Gulf and that was in the middle of the night during the first week on patrol. The ship detected fast moving surface craft closing from the Iraqi coast, which were assessed as possibly hostile. It turned out that they were smugglers operating between Iraq and Iran, but the call to Action Stations had a noticeable effect upon the ship’s company.

Another source of strain upon the ships’ companies especially in the early weeks in in the Gulf, was the threat of chemical and biological weapons. Not only did the ships continue with defensive exercises, but atropine injectors and other antidote medical supplies were issued. It is difficult to assess the impact this had on the mental states of individuals, but it would have been unsettling for most.

There was little relief from the operational tempo for the ship’s company over the three months ADELAIDE was in the area of operations. Muscat was the only port allied ships could enter and the Omani authorities imposed limits on the number and frequency of visits to Muscat, each of only three days duration, and one of these was truncated when the ship had to sail unexpectedly to intercept an Iraqi merchant ship.

Although there were only a few periods of peak stress during the ship’s deployment, there is no doubt that all personnel on board were in a heightened state of readiness and apprehension throughout the four months from the Prime Minister’s announcement. As the Commanding Officer I was surprised to feel tension drain from my body the day the ship departed the area of operations and set course for Australia. It was a physical as well as an emotional reaction. We attempted to provide relief for the ship’s company during the passage back to Sydney, but no formal counselling was made available to individuals.

Mr Ross’ statement and Lifestyle Questionnaire [3]

[3] Exhibit A4.

10.     In a statement attached to a Lifestyle Questionnaire completed on 9 February 2005 Mr Ross stated, in part:

From the time I returned from Operation Damask I have had a very strong feeling of being disposable or easily replaced and have constantly questioned my own self- worth. I constantly remember feeling I would never return to Australia having only heard what the media had had to say about the operation as well as the reliving of constant emotionally and physically draining exercises and of being in a position on board a ship which tactically is the “best place” to be hit.

I made an unsuccessful (thankfully) attempt on my own life in February 1991. I went through a marriage separation and subsequent divorce, I became extremely unreliable as a serviceman and my ability to be a husband or friend became non‑existent.

I am extremely fortunate in having met and having a family with my new partner, Georgina, who has over the years been subject to many forms of emotional abuse due to my severe mood swings and fear of people getting close as I distrusted everyone. This I feel is due predominately to my own perception of myself.

I have had a deep feeling of sadness since my return and this was then magnified by the death of a close friend in 1995, who had served on board HMAS Adelaide with me. It seems that every time I meet up with old colleagues someone else has died. I have gradually withdrawn more and more and have had extreme difficulty communicating and assimilating with work peers.  This lead to feeling of extreme paranoia and resentment towards peers and the breakdown of working relationships.

I have since been unemployed, have religiously been seeing my GP with whom I force myself to speak about my feelings and the deep sense of being unable to conduct myself as either a Serviceman or a man but we share a mutual focus that sometime in the near future I can again be gainfully employed fulltime.

During the time I have been with my wife I have drunk to excess in the hope of numbing the feelings I have, withdrawn from my family altogether which had lead [sic] to my separation on several occasions … The only place I go out to now are to shop and to attend my sons sport. I do not communicate with people and find I have very low tolerance for anyone except my wife and children.

In Dec 04 I presented myself to Warragul Hospital due to fears that I would harm myself or someone else. … I feel that with the exception of my wife and children my life has reached rockbottom and they too are following me down a road of sadness.

…

I was in a state of total despair as I now felt I was not only weak for feeling the way I did but also gutless for the constant feeling of ending my own life. I feel very fortunate that I have a wife and two very special boys in my sons that regardless of what has happened have always been beside me. I feel that these have kept me going all this time.

…

I constantly think about the mates who I have lost either through suicide, disease or accident and I feel daily that I will be next. This is now to the extent that I feel as though I will get a tap on the shoulder cos its [sic] my turn.

11.     In the Questionnaire Mr Ross recorded that he stopped working in 2004 because he “lost the Plot –Depression, Paranoia” and that he had “lost touch with reality – couldn’t stand people around me.  I was very stressed at that time.”

Ms Howorth’s evidence

12.     Ms Howorth met Mr Ross in 1991.  They lived together from mid-1992 and married in 1996.  They have two children.

13.     Mr Ross told Ms Howorth that whilst serving in the Gulf he was in fear for his life and that he felt he would not survive the tour.  His workstation was beside the ship’s helicopter which he believed made his position a likely target for attack by missiles from land, air and sea. He said that he was “terrified of being in that position – this is where I die.” [4] He told Ms Howorth also that on occasions he was on board the helicopter during the interception of vessels.  It was his task to man a machine gun in the doorway of the aircraft. In this situation he feared being fired at and also feared that he may be required to fire on those on board the boats.

[4] Exhibit A1.

14.     Mr Ross told Ms Howorth that prior to this tour of duty he suffered no emotional problems.  He felt that his emotional problems commenced during his tour and continued as a consequence of it.  Sometime shortly after his return from operational service Mr Ross’ first marriage ended by divorce.

15.     Ms Howorth said that Mr Ross was a heavy drinker of alcohol when they first met.  She said that he continued to drink heavily despite her efforts to persuade him to reduce his consumption.  He would consume at least 7-8 cans of beer each day.  Between 1994 and 1998 his alcohol abuse was a major problem. At times he would become morose and start crying; he could not explain to Ms Howorth why this happened.

16.     Ms Howorth also gave evidence that on occasions between 1994 and 1998 Mr Ross would “snap”.  He would become morose, angry and would not talk to her for periods of up to one week.  At times he would appear to distance himself from their two young sons.  On these occasions he told Ms Howorth that he was “worthless” and that he had never felt that way before the war.  Ms Howorth said that Mr Ross would have bouts of this behaviour every 4-5 months.

17.     From the time he was discharged from the Navy in April 2000 until December 2004, Mr Ross held a number of positions with various employers.  These periods of employment were short-lived as he was unable to relate to his fellow employees and repeatedly formed the view that his fellow employees were conspiring against him and talking about him.  On one occasion he quit his job without notice; on another occasion he assaulted another employee.

18.     In October 2009 Ms Howorth and Mr Ross separated at the instigation of Ms Howorth.  This separation was brought about by reason of Mr Ross’ behaviour towards her. During the following two months Mr Ross contacted Ms Howorth up to 75 times per day.  He was alternately abusive and apologetic.

19.     Mr Ross died on 23 December 2009 as a result of self-administered carbon monoxide poisoning.

Decision and Reasons of the Veterans’ Review Board 28 November 2006

20.     In 2004 Mr Ross applied to the Commission for an increase in his disability pension.  In its Reasons for Decision the Board referred to evidence given by Mr Ross:

The veteran then said that on his return he felt depressed and in 1991 tried to take his own life. He said that as a result he was seen by a Naval psychiatrist on one occasion and he said that he talked to her about his experiences in the Gulf in some detail. He was not prescribed medication. He acknowledged that there was no report of his visit on his Medical file, however, he believed that there was a report on his Psychological file. He then said that in about 1994/1995 he applied for submarine service and as part of the process was seen by a psychologist who was aware of the 1991 attempt on his life.

He went on to say that in the period 1995 to 1998 he visited a clinic and was seen by a civilian doctor in relation to his depression. He was not prescribed medication and tended to relieve his stress by drinking alcohol.

He said that in 1998 he had to seek treatment and was seen by Dr Cronin on a number of occasions. He said that he explained the attempted suicide to him at the time. He then said that as a result of hospitalisation and treatment he was prescribed medication, which he currently takes. He said that he sees a psychologist and his local doctor on a regular basis.[5]

[5] Exhibit R1.

Hospital and medical records

21.     In July 1995 Mr Ross was assessed as medically fit for submarine duty.  The record makes no reference to psychological assessment.

Report by Dr Cronin, Psychiatrist

22.     In November 1998 Mr Ross is recorded as reporting increasing restlessness, stress and mood swings “over recent months.”   He was referred to Dr Cronin, Psychiatrist, who diagnosed him as suffering Major Depression.  He was hospitalised on this occasion.  The notes record that the depression “had developed in reaction to a number of very stressful events.”

23.     On 7 December 1999 Dr Cronin reported:

Remains well. … No suggestion of depression, and anxiety is much less than it was.  Has no concerns about his past and looking to the future philosophically. [6]

[6] Exhibit A6 p. 93.

Report by Dr Douglas, Psychiatrist

24.     Mr Ross was assessed by Dr Douglas on one occasion in January 2005.

25.     The history taken from Mr Ross by Dr Douglas included the following:

He said that he and other sailors had heard a lot about the Iraq Airforce.  He said they had Mirage planes and Exocet missiles which would be very destructive to his ship. He said serving there was a frightening experience. He said that prior to going they had constant exercises with the Australian Airforce. He said he found these very stressful.

He returned to Australia and he said he went off the rails in December 1990. He said that in February 1991 he attempted suicide. He said today that he fired a pistol into his mouth, thinking it was loaded. It was not. Afterwards, he said, he saw a Navy psychiatrist, but had just one consultation. No further treatment was arranged.

He served ashore from February 1991 to August 1991. He then returned to sea. He said that during that time his marriage broke up. He said he stopped everything. He said he was drinking heavily.[7]

[7] Exhibit A6 p.107.

26.     Dr Douglas diagnosed Mr Ross as suffering Major Depressive Disorder and Alcohol Abuse.  In his opinion the date of onset of both conditions was around 1990/1991 and his service in the Gulf appeared to be the onset of his problems.

Report of Dr Seabridge, Psychiatrist [8]

[8] Exhibit A6 p.120.

27.     Dr Seabridge assessed Mr Ross in September 2006 on one occasion.  Dr Seabridge had available the report of Dr Douglas and Mr Ross’ medical records.

28.     Dr Seabridge reported, in part:

Mr Ross described his dread of the call to action stations, even though they were doing exercises in Australian waters with Australian aircraft.  His position was in the rear of the hangar, and he envisaged the outcome if this was in fact a combat situation. He saw his position in the rear of the hangar as a prime target, and this state of affairs continued in the Gulf, where they were regularly “buzzed” by American aircraft.

The men had been primed to expect serious aerial attack by Iraq airplanes, including Mirage planes firing Exocet missiles. His fear was compounded by the issue of protective clothing in the event of anticipated gas warfare, when he found that the equipment was outdated and outmoded and had deteriorated.

When the ship docked back in Sydney, his wife was waiting for him on the wharf. He said “I didn’t deserve her, and she deserved someone better than me”. He felt he was totally alone in his fear, and could not be reassured that others would have felt the same way. He categorically dismissed himself as a coward, unworthy of any place in life, and it was not long afterwards began drinking in an abusive manner, and made a serious life-threatening suicidal attempt. He had one consultation with a female Navy psychiatrist, but chose to tell her nothing of his fears. He had been advised by his Warrant Officer to do this, to protect his career.

In 1998, his depression became sufficiently serious to attract psychiatrist treatment and the prescribing of anti-depressant medication which he is still taking, and continues to do so in spite of troublesome sexual side-effects. He was afraid to discontinue or change the medication because he said “I just couldn’t stand to feel as bad as I did before”.

Mr Ross has a strong family history of major depression, and suicide, and it is now well recognised that in constitutionally predisposed individuals stressful life events can precipitate a major depressive disorder.

The events as described by Mr Ross, with ongoing intense feelings of fear, with associated self-condemnation, as described by him, adequately fulfil the criteria required for a severe psychosocial stressor, and his development of a major depressive disorder with suicidality fulfil the diagnostic requirements of DSM IV.

Mr Ross began to drink abusively as soon as he returned to Australia. He had been unable to do so on the ship because of limited access to alcohol. His drinking pattern is no longer abusive, although he can still consume a slab of beer in one day. He does have alcohol-free days now, and his diagnosis is one of alcohol abuse, in partial recession.[9]

[9] Exhibit A6 pp. 121-122.

LEGISLATIVE BACKGROUND

War-caused injury

29.     Section 9 of the Act sets out the circumstances in which an injury is taken to be “war-caused”.  The relevant parts of that section are:

War‑caused injuries or diseases

(1)     Subject to this section and section 9A, 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.

Standard of proof

30.     Section 120 relevantly provides:

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.

Note:         This subsection is affected by section 120A.

…

(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.

Note:         This subsection is affected by section 120A.

…

(6)     Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

Reasonable hypothesis and a Statement of Principles

31.     Subsection 120A(3) provides:

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.

APPLYING THE LAW

32.     In Repatriation Commission v Deledio[10] the Full Court of the  Federal Court set out the steps to be taken in determining claims which arise from operational service:

1.     The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.     If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] determined by the Authority under s 196B(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 a 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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

[10] (1998) 83 FCR 82 at 97.

ISSUES FOR DETERMINATION

33.     I have to determine the following issues:

1)Did Mr Ross render "operational service” and if so, when?

2)Within the meaning of s 120A(4) of the Act, what was the “kind of death” met by Mr Ross?

3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?

5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?

6)If so, am I satisfied beyond a reasonable doubt that the death of the late Mr Ross was not war-caused?

DETERMINATION OF THE ISSUES

Issue 1:  Did Mr Ross render operational service and if so, when?

34.     The Commission has conceded that Mr Ross rendered operational service from 22 August 1990 until 14 December 1990.  I am satisfied that this is a proper concession.

Issue 2:  What was the kind of death met by Mr Ross?

35.     The parties agree that a cause of death was suicide by carbon monoxide poisoning.  I am satisfied that this agreement is appropriate and this was the kind of death in accordance with the Act.

Issue 3:  Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

36.     In deciding this issue I must consider all the material, not only that which supports the hypothesis: Hardman v Repatriation Commission.[11]

[11] (2004) 82 ALD 433, 445.

The first hypothesis

37.     Taking into account all the material before me I determine that the material does point to a hypothesis which connects Mr Ross’ death with the circumstances of his operational service.  The hypothesis is that:

·by reason of the stressful circumstances of his operational service, Mr Ross developed a depressive condition and alcohol abuse in 1990 or early 1991;

·Mr Ross continued to suffer from the depressive condition and alcohol abuse until his death in December 2009; and

·Mr Ross took his own life because he was suffering from the depressive condition and/or alcohol abuse.

The second hypothesis

38.     I determine also that the material points to a second  hypothesis connecting Mr Ross’ death with the circumstances of his operational service as follows:

·by reason of the stressful circumstances of his operational service, Mr Ross developed a depressive condition and alcohol abuse in 1990 or early 1991;

·Mr Ross continued to suffer from the depressive condition and alcohol abuse until his death in December 2009;

·by reason of Mr Ross’ conduct arising from his depression and/or alcohol abuse Mr Ross was separated from his wife; and

·Mr Ross committed suicide by reason of the breakdown of his marital relationship.

39.     There is nothing in the material before me that prevents the determination of either of these hypotheses.

Issue 4:  Are there relevant Statements of Principles in force?

Suicide and Attempted Suicide

40. The Statement of Principles concerning Suicide and Attempted Suicide No.11 of 2010 is in force.

41.     I am satisfied that this Statement of Principles is applicable.

Alcohol Dependence and Alcohol Abuse

42.     The Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No.1 of 2009 is in force.

43.     I am satisfied that this Statement of Principles is applicable.

Depressive Disorder

44. The Statement of Principles concerning Depressive Disorder No. 27 of 2008 is in force.

45.     I am satisfied that this Statement of Principles is applicable.

Issue 5:  Are the hypotheses, or either of them, consistent with the template within the Statement of Principles and therefore reasonable?

The first hypothesis

46.     Clause 5 of the Statement of Principles concerning Suicide provides:

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.

47.     Clause 6 provides, in part:

The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting suicide … with the circumstances of a person’s relevant service is:

…

(b) having a psychiatric disorder as specified at the time of the suicide:

…

48.     In clause 9 “a psychiatric disorder as specified” is defined to mean:

one of the following Axis I or Axis II disorders of mental health listed below:

…

(c) alcohol abuse or alcohol dependence;

…

(h) depressive disorder;

…

that attract a diagnosis under DSM-IV-TR and are severe enough to warrant ongoing management.  The ongoing management may involve regular visits (for example. At least monthly), to a psychiatrist, clinical psychologist or general practitioner.

The first hypothesis – suicide/depressive disorder

49.     The Commission agrees that Mr Ross suffered from depressive disorder at the time he committed suicide.  Depressive disorder is itself subject to a Statement of Principles.  It is necessary therefore to consider whether on the material before me the hypothesis is consistent with the template relating the depressive disorder to the operational service rendered by Mr Ross.

50.     Clause 5 of the Statement of Principles concerning Depressive Disorder provides:

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.

51.     Clause 6 provides, in part:

The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service is:

…

(a)     for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,

…

(ii)     experiencing a category 1A stressor within the five years before the clinical inset of depressive disorder.

52.     In clause 9 “ a category 1A stressor”  is defined to mean “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.

53.     It was put on behalf of Ms Howorth that the material as to the  experience of Mr Ross when he was engaged in operational service fits within the template of ‘experiencing a category 1A stressor”  namely by “experiencing a life-threatening event.”   It was argued that that each of the following situations come within this definition:

·being on board the HMAS Adelaide next to the helicopter in a place likely to be subject to enemy attack;

·manning the machine gun at the door of the helicopter during the interception of vessels.

54.     These events are to be seen in the light of the nature of the intensive training received by Mr Ross prior to his arrival in the Gulf and the intensity of the operations whilst the HMAS Adelaide was in the Gulf.  The material before me, in particular the statement of Rear Admiral Dovers supports this.

55.     Counsel for the Commission argued that the experiences of Mr Ross whilst on operational service were no more than the experiences of carrying out his normal duties as a member of the crew.  It was put that Mr Ross had ten years’ experience as a sailor and had been specifically trained for the duties he performed.  It was conceded by the Commission that the period in the Gulf was intensive but that Mr Ross was dealing with perceived threats, rather than life threatening events.  Counsel argued that an event such as being threatened with a weapon or falling from a helicopter would be a life threatening event.

56.     I do not accept the interpretation proposed by the Commission as it gives insufficient weight to the subjective component of the expression “life-threatening event”.

57.     In Woodward v Repatriation Commission[12]  the Full Court of the Federal Court considered the meaning of the expression “experiencing a severe stressor”.  At paragraphs 135 and following the Full Court said:

The question then is whether material pointing to a genuine belief based on reasonable grounds that an event or events involve a threat of death or serious injury can satisfy the definition of "experiencing a severe stressor" when there is no material pointing to the reality in fact of what is genuinely and reasonably perceived.

When the question ultimately in issue involves the effect of an objectively stressful event upon a person's mental health, it is hard to see why the unknown reality of the threat, as contrasted with the appearance of the reality, should be determinative. Examples that bring any such distinction into question come readily to mind: the passenger in an aircraft who overhears another saying that he has an explosive device, or the shopkeeper threatened with a shotgun (in fact unloaded) are just two such examples.

In Stoddart v Repatriation Commission (2003) 197 ALR 283 ("Stoddart"), Mansfield J held that the AAT had erred in requiring that a "threat" be one that, judged objectively and remote from the circumstances and state of knowledge of the person experiencing it, has a real or actual prospect of resulting in death or serious injury. His Honour considered that by doing so the Tribunal had thereby imported into the concept of "threat" in the applicable SoPs more than was demanded by their wording and their purpose: see at [41].…

Mansfield J concluded that the AAT erred in law in its understanding of the expression "experiencing a severe stressor" in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour's opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation.

It would be open to the AAT to conclude the situation involving Mr Woodward was similar, in relevant respects, to that considered by Mansfield J in Stoddart. It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to Mr Woodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more "events" which precipitated the perception and that the events were real in the sense that they had an objective existence. …

We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed.

[12] [2003] FCAFC 160 at [135] – [141].

58.     The material before me is consistent with the template in the Statement of Principles concerning Depressive Disorder in that it is consistent with Mr Ross having perceived “a threat of … death from actual events, experienced in circumstances in which it was reasonable to perceive a threat.” [13]

[13] [2003] FCAFC 160 at [140].

59.     Further the hypothesis is consistent with the template in that there is material which supports the proposition that the depressive disorder suffered by Mr Ross at the time of his death had its clinical onset within five years of his experiencing a category 1A stressor.  This material is:

·the evidence of Ms Howorth as to the behaviour of Mr Ross from 1991 until his death;

·the material in Mr Ross’ statements as to his feelings and conduct  after his return from operational service;

·the material relating to the diagnosis of Mr Ross’ suffering depression in 1998;

·the material relating to Mr Ross’ admission to hospital in 2004;

·the opinions of Dr Douglas and Dr Seabridge.

The first hypothesis – suicide/alcohol dependence and alcohol abuse

60.      Clause 5 of the Statement of Principles concerning alcohol dependence and alcohol abuse provides:

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.

61.     Clause 6 provides, in part:

The factor 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 is:

…

(b)     experiencing a category 1A stressor within the five years before the clinical onset of the alcohol dependence or alcohol abuse.

62.     In clause 9 “a category 1A stressor”  is defined to mean, so far as is relevant, “one or more of the following severe traumatic events:

(a)   experiencing a life-threatening event …

63.     For the reasons set out in relation to depressive disorder I am satisfied that the material supports the hypothesis that Mr Ross experienced life-threatening events whilst on operational service and is therefore consistent with the template in this respect.

64.     The hypothesis is consistent with the template also in that there is material which supports the proposition that the alcohol dependence and alcohol abuse suffered by Mr Ross at the time of his death had its clinical onset within five years of his experiencing the life-threatening events.  This material is:

·the evidence of Ms Howorth as to the alcohol consumption of Mr Ross from 1991 until his death;

·the material in Mr Ross’ statements as to his alcohol consumption  after his return from operational service;

·the material relating to the diagnosis of Mr Ross’ suffering depression in 1998;

·the material relating to Mr Ross’ admission to hospital in 2004;

·the opinions of Dr Douglas and Dr Seabridge.

The second hypothesis

65.     Clause 5 of the Statement of Principles concerning Suicide provides:

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.

66.     Clause 6 of the Statement provides, in part:

The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting suicide … with the circumstances of a person’s relevant service is:

…

(g)     experiencing a category 2 stressor within the five years before the suicide …

67.     In clause 9  “a category 2 stressor”  is defined to mean in part:

One or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

…

(b)     experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation or divorce.

68.     In view of the following material before me I am satisfied that the hypothesis is consistent with the Statement of Principles:

·in October 2009 Ms Howorth and Mr Ross separated at the instigation of Ms Howorth;

·their relationship had commenced in 1991;

·the effects of the separation on Mr Ross were chronic in nature in that he continued to contact Ms Howorth repeatedly on a daily basis, being alternatively abusive and apologetic;

·Mr Ross suffered on-going distress from the time of the separation until his death by suicide on 23 December 2009;

·Ms Howorth’s decision to separate from Mr Ross was caused by his moodiness, unhappiness, his behaviour towards her and his excessive consumption of alcohol.

Issue 6:  Am I satisfied beyond a reasonable doubt that the death of the late Mr Ross was not war-caused?

69.     The Commission conceded that Mr Ross suffered from a depressive disorder at the time of his death.  On the evidence before me I am satisfied that this is a proper concession.

70.     It was argued on behalf of the Commission that I should be satisfied beyond reasonable doubt that Mr Ross’ death was not war caused on two grounds:

1)the clinical onset of the depressive disorder and the alcohol dependence and abuse was more than five years after the period of occupational service;

2)there is no causal connection between the operational service rendered by Mr Ross and the conditions of depressive disorder and alcohol abuse and dependence.

Clinical onset of the depressive disorder and the alcohol dependence and alcohol abuse

71.     The Commission argued that although Mr Ross exhibited “florid symptoms” of depression from 1998 onwards which warranted the diagnosis of depressive disorder, there was no evidence to support a finding that there were symptoms of depression which continued after the alleged suicide attempt in 1991.  It was put that whilst Dr Douglas reported that Mr Ross went “off the rails in December 1990” [14] there is nothing in the material to support this.  Further it was put that Mr Ross’ condition was not sufficiently serious to require treatment until 1998[15] and that until that time Mr Ross appeared to be “on an even keel.”  Counsel also referred me to the evidence that Mr Ross had been determined fit for submarine duty in 1994.

[14] Exhibit A6 p.107.

[15] Exhibit A6 p.121.

72.     Whilst I accept that there is evidence that Mr Ross’ condition deteriorated markedly from 1998 onwards, taking into account all of the evidence, including that of Ms Howorth and the opinions of Dr Douglas and Dr Seabridge, I am not satisfied beyond reasonable doubt that the date of clinical onset was 1998 rather than 1991.

73.     For the same reasons I am not satisfied beyond a reasonable doubt that Mr Ross’ alcohol dependence and alcohol abuse had a clinical onset after 1991.

Causal connection between the operational service and the conditions of depressive disorder and alcohol dependence and alcohol abuse

74.     The Commission argued that at the time he rendered operational service Mr Ross was a sailor of ten years’ experience who had been trained specifically to carry out the duties he performed during that service.  Further it was put that there was no specific incident which could be shown to have caused a threat to Mr Ross.

75.     Again, in view of the evidence of Dr Douglas and Dr Seabridge and the statements of Mr Ross and Ms Howorth as to how he was affected by the events of his operational service I am not satisfied beyond reasonable doubt that those events did not have the necessary causal relationship with Mr Ross’ conditions of depressive disorder and alcohol dependence and abuse which were connected with the break-up of his marriage and therefore with his death by suicide.

DECISION

76.     The decision under review, being the decision of the Repatriation Commission made 22 February 2010 will be set aside.  In substitution for the decision set aside it will be decided that the death of the late Mr Ross on 23 December 2009 was “war‑caused” within the meaning of the Veterans’ Entitlements Act 1986 (Cth).  

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ..(sgd D De Andrade)....

Personal Assistant

Date of Hearing  26 October 2011
Date of Decision  21 December 2011
Counsel for the Applicant              Ms F Ryan
Solicitor for the Applicant              Ms L Gillett, Williams Winter
Counsel for the Respondent         Mr G Purcell
Solicitor for the Respondent         Mr K Rudge, departmental advocate