Hunter and Repatriation Commission
[2011] AATA 514
•26 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 514
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2006/1354
VETERANS’ APPEALS DIVISION ) 2006/1355 Re Brian Karl Hunter Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Air Vice-Marshal (Dr) T K Austin AM, MemberDate26 July 2011
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a decision that the Commonwealth is liable to pay a pension to Mr Hunter under s 13(1) of the Veterans’ Entitlement Act 1986 in respect of the war-caused diseases Post Traumatic Stress Disorder and Alcohol Dependence (in remission) from 2 March 2005. The Tribunal remits to the Repatriation Commission the assessment of the rate of disability pension payable to Mr Hunter from 6 May 2004 and from 2 March 2005. .....................[sgd]...................
Mr R P Handley
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – entitlements – disability pension – special rate - operational service - war-caused disease – posttraumatic stress disorder – alcohol dependence and alcohol abuse – Deledio test – Tribunal not satisfied that any of the relevant facts constituting the hypothesis are disproved beyond reasonable doubt – decision under review set aside and remitted
RELEVANT ACTS
Veterans’ Entitlements Act 1986: ss 13, 120
CITATIONS
ReHunter and Repatriation Commission [2009] AATA 259
Hunter v Repatriation Commission (2010) 114 ALD 89; [2010] FCA 145
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; [1998] FCA 391
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609; (2001) 33 AAR 370; [2001] FCA 119
Re Hunter and Repatriation Commission [2002] AATA 485
Woodward v Repatriation Commission (2003) 131 FCR 473
OTHER AUTHORITIES
Statement of Principles concerning Posttraumatic Stress Disorder No 5 of 2008 dated 20 December 2007
Revocation and Determination of Statement of Principles concerning Post Traumatic Stress Disorder No 3 of 1999 dated 14 January 1999
Amendment of Statement of Principles concerning Post Traumatic Stress Disorder No 54 of 1999 dated 24 June 1999
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No 1 of 2009 dated 19 December 2008
Revocation of Statement of Principles concerning Psychoactive Substance Abuse or Dependence and Determination of Statement of Principles concerning Alcohol Dependence or Alcohol Abuse No 76 of 1998 dated 1 December 1998
REASONS FOR DECISION
26 July 2011 Mr R P Handley, Deputy President Air Vice-Marshal (Dr) T K Austin AM, Member 1.Following a successful appeal and cross-appeal in the Federal Court from the decision of the Tribunal in Re Hunter and Repatriation Commission [2009] AATA 259 (21 April 2009), Perram J ordered that the decisions of the Tribunal be set aside and remitted to the Tribunal for determination according to law: Hunter v Repatriation Commission (2010) 114 ALD 89 ; [2010] FCA 145 (25 February 2010).
2.The subject of the proceedings is Mr Hunter’s application for the review of a decision of the Veterans’ Review Board (VRB) affirming decisions of the Repatriation Commission to pay him the disability pension at 100% of the general rate and to refuse his claim for acceptance of Post Traumatic Stress Disorder (PTSD) as a war-caused disease on the ground that it was not related to his service.
Background
3.Mr Hunter was born in April 1941 and is aged 70. He married at the age of 19 in 1960, and he and his wife have two daughters born in 1964 and 1967. Mr Hunter served in the Royal Australian Navy from 26 May 1958 to 25 May 1979. This included periods of both operational service and eligible defence service. He first lodged a claim for disability pension entitlements on 27 July 1998. His accepted conditions are chronic gastritis, bilateral sensorineural hearing loss with tinnitus, gastro-oesophageal reflux disease, anxiety disorder and depressive disorder.
4.The Repatriation Commission’s decision to accept Mr Hunter’s claim in respect of anxiety disorder and depressive disorder was made on 23 December 2004, when the Commission also decided to increase the rate at which he was paid the disability pension to 100% of the general rate, with effect from 6 February 2004.
5.On 2 June 2005, Mr Hunter lodged a further claim in respect of PTSD. On 7 June 2005, the Commission decided that his PTSD was not related to service. Mr Hunter applied to the VRB for a review of the decision dated 23 December 2004 to pay him the disability pension at 100% of the general rate and of the decision dated 7 June 2005 to refuse his claim in respect of PTSD. These decisions were affirmed by the VRB on 6 September 2006 and, on 9 October 2006, Mr Hunter applied to the Tribunal for a further review. On 21 April 2009, the Tribunal affirmed the decision in respect of PTSD and the rate at which pension is payable, but varied the decision to include a finding that Mr Hunter suffers from the war-caused disease of alcohol dependence (in remission). As noted above, on 25 February 2010, the Tribunal’s decision was set aside by the Federal Court and the matter remitted to the Tribunal for determination according to law.
Issues
6.The relevant issues for the Tribunal to determine are:
(1) With reference to Mr Hunter’s claim in respect of PTSD, from what conditions, if any, does Mr Hunter suffer? The diagnosis of any relevant condition must be established to the Tribunal’s reasonable satisfaction (s 120(4) of the Veterans’ Entitlement Act 1986): Benjamin v Repatriation Commission (2001) 70 ALD 622, at 634 [55].
(2) If Mr Hunter is found to suffer from further relevant conditions, are such conditions related to his operational service, as he claims? The approach the Tribunal must adopt in determining this is that prescribed by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio).
(3) Is Mr Hunter entitled to an increase in the rate at which his disability pension is paid? Mr Hunter requests that if the Tribunal finds the Commission is liable in respect of his claim for PTSD, it should remit the assessment of the rate of pension payable to the Commission.
7.Perram J found the Tribunal made an error of law by failing to distinguish between the two relevant Statements of Principle (SoPs): Instrument No 5 of 2008 concerning PTSD, which was the SoP in effect at the date of the hearing, and Instrument No 3 of 1999 concerning PTSD (as amended by Instrument No 54 of 1999), which was the SoP in effect at the time the Commission made its decision. If a veteran’s hypothesis of causation is not upheld by the SoP applicable at the time of the Tribunal hearing, the veteran has an accrued right to have his position considered under any earlier SoP applied by the Commission in making its original decision: Repatriation Commission v Gorton (2001) 110 FCR 321.
8.The Tribunal found that Mr Hunter’s hypothesis was not upheld by SoP No 5 of 2008. It therefore proceeded to consider Mr Hunter’s hypothesis by reference to SoP No 3 of 1999. The Tribunal found his hypothesis was not upheld by SoP No 3 of 1999 either and, consequently, dismissed his claim. However, on appeal, Perram J found that the wording of the two SoPs differed in the nature of the experience required to satisfy the relevant factors:
22. … As events transpired the Tribunal did its principal analysis of Mr Hunter’s claims by reference to the more recent SoP concerned with PTSD. That statement required the presence of a category 1A or 1B stressor which were defined in a materially different way to the SoP with which the present appeal is concerned. It is not necessary to set out in full that SoP. It suffices instead to observe that the later SoP required the claimant to have come, in effect, face to face with some species of peril. The earlier SoP could be satisfied if a claimant were “confronted” with a peril which this Court has held includes being confronted “in the mind”: Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 at 495 [123] per Black CJ, Weinberg and Selway JJ. Consequently, the two SoPs significantly differed in that physical confrontation was required under one but not the other.
9.Perram J found that the Tribunal failed to recognise the difference (and thereby made an error of law). He said, at [28]: “The question of whether the material before the Tribunal was capable of sustaining a particular factual conclusion is itself is a question of law”. He had previously said:
25. … The material before the Tribunal clearly was capable of sustaining a potential finding that constituted a threat of the kind referred to in Stoddert [sic] and Woodward or, even, just as a matter of common sense. The material included the following matters:
(a) the crew who had been relieved by the crew of which Mr Hunter was a member had reported that they had been fired upon by a sampan;
(b) each time the HMAS Teal picked up a contact on the radar and could not readily identify it, it would approach under the cover of darkness. Only when a star flare was fired was it known whether it was debris or a contact;
(c) Mr Hunter was up on deck initially but was later below deck. The atmosphere whilst this was going on was tense and frightening.
26. The circumstances in (a) and (b) are clearly capable of sustaining a view that Mr Hunter was confronted with a threat to his person in the Woodward sense – the previous crew before reported that they had in fact been fired on; they were proceeding in darkness to examine contacts which might very well be the same thing. Objects were then found which might have been contacts (which might have fired) and approached in darkness (to avoid that very risk). Nor is it possible to say that that material is not capable of supporting the inference that Mr Hunter did not himself have a subjective state of fear.
10.Justice Perram also found that the Tribunal had made a further error:
34. … It is quite obvious, I think, that the Tribunal did not consider any of the material dealing with “confrontation” with an actual death because it assumed, erroneously, that the requirements of the earlier SoP were the same as those of the later SoP.
Does Mr Hunter suffer from a condition comprehended by his claim in respect of PTSD?
11.As stated above, the diagnosis of any relevant condition must be established to the Tribunal’s reasonable satisfaction (s 120(4)). The Commission contends that Mr Hunter does not suffer from PTSD and, in support of this contention, relies on (1) the report of Dr J Roberts, dated 11 April 2007, and, in particular, his conclusion that Mr Hunter has “no current psychiatric diagnosis”, and (2) the reports of Commodore Mulcare dated 31 May 2007 and 31 December 2010 with their annexures. Mr Hunter contends that he suffers from PTSD and either alcohol abuse or alcohol dependence and relies on the opinions of all the psychiatrists other than Dr Roberts in so contending.
Relevant Events and Evidence
12.Mr Hunter said he only once saw a psychiatrist while in the Navy – in 1962, when he was worried about his wife’s safety when he was away. He was given some pills which he took. After he left the Navy, he had two “breakdowns” in the 1980s when he was not coping with work. He did not discuss his psychological symptoms with his general practitioner who prescribed Murelax to help him sleep. He was off work for about six weeks on each occasion and stopped taking Murelax when he returned to work. Mr Hunter said he saw a psychiatrist at Ryde (according to his general practitioner’s clinical notes, a Dr Zolton in 1992) and first consulted Dr Altman in 1998 on a referral from his general practitioner. Mr Hunter is still seeing Dr Altman about once a month and takes Zoloft 200 mg daily.
13.In a report dated 11 December 1998, Dr Altman diagnosed Mr Hunter as suffering from “severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence” as a result of the collision between HMAS Melbourne (on which Mr Hunter was serving at the time) and the USS Frank E Evans on 3 June 1969. It is apparent from Dr Altman’s report that Mr Hunter had not told him of his experiences while serving on HMAS Teal, a minesweeper, between 11 May 1965 and 3 February 1966. Mr Hunter was asked about this in cross-examination at the hearing. He said he did not tell Dr Altman about his experiences on HMAS Teal because he was ashamed of having been frightened and terrified, which seemed cowardly. He acknowledged that he had told Dr Altman about his experiences on HMAS Teal after learning that his service on HMAS Melbourne did not count as operational service for the purpose of his claim for a disability pension.
14.Mr Hunter said that when he and others joined the crew of HMAS Teal, they were told by the outgoing crew, who were still keyed up about it, of an incident in December 1964 when Teal had been fired on by a sampan and Teal returned fire killing all nine on board: the ‘official’ version of the incident - of the infiltrators surrendering - is not true. Mr Hunter said learning of this incident left the new crew under no misapprehension about how dangerous their job was.
15.Commodore PM Mulcare of Writeway Research Service Pty Ltd has provided three reports in relation to Mr Hunter’s account of his service on Teal: dated 31 May 2001, 31 May 2007 and 31 December 2010. In his report dated 31 December 2010, Commodore Mulcare referred to an incident on 13 December 1964 when, at shortly after 2100 hours Teal intercepted a small Indonesian vessel. When the boat was illuminated by Teal’s 10‑inch signal projector, it opened fire on Teal with light automatic weapons. The signal projector was turned off and Teal returned fire with three Bren guns. The boat attempted violent evasive manoeuvres and then surrendered, with three of the seven Indonesians on board having been killed. Lieutenant Commander K Murray, Teal’s Commanding Officer, was awarded the Distinguished Service Cross for his coolness and judgement during this interception and an earlier one on 6 December 1964 when an Indonesian vessel was detected and ignored orders to stop. On that occasion, Teal fired across the Indonesian vessel’s bows and three Indonesian soldiers were arrested and delivered ashore.
16.Mr Hunter said he initially served on the upper deck of Teal for about a month before it was realised that he was the more senior of the two radio operators on board. As a result, he was moved to the wireless office and the other radio operator was moved to the upper deck. At night, when most incidents occurred, if you were on the upper deck, “you don’t know what’s out there in the darkness – you feel very exposed.” On the other hand, “in the wireless office, you don’t know what’s happening.” Mr Hunter said he was equally terrified in both situations.
17.Mr Hunter described what happened when the ship’s radar picked up a contact. The ship is darkened and everything is closed up and quiet. Because “you don’t know what’s out there”, when the star shell goes up, you do not know whether someone will start firing on you. Usually, the contact is only beer cans or bamboo in the water because the radar is very sensitive. Mr Hunter said that during his month on the upper deck, no hostile contacts were made. In the wireless room, he was working on his own, receiving and sending communications and being there for cryptographic deconstruction, which required that he destroy daily codes and ciphers if the ship was boarded by the enemy.
18.There was an incident involving HMS Woolaston, a minesweeper of a similar class to Teal, which took over Teal’s patrol lines when Teal had to return to Singapore because its radar became defective. On 25 June 1965, the Woolaston encountered a sampan which, when brought alongside, exploded, blowing a hole in the ship’s side and killing one of the crew. Had it not been for Teal’s radar being defective, this would have been the Teal. As a result of the Woolaston incident, naval procedures were changed so that ships were no longer brought alongside anymore and the occupants were told, instead, to swim to Teal. Mr Hunter said he learned of the Woolaston incident via morse code messages and, later, he saw Woolaston in dock with the hole in its side. In his report dated 31 May 2001, Commodore Mulcare confirmed that this incident took place on 25 June 1965 and a Midshipman was killed.
19.Mr Hunter described an incident when he claimed Teal had intercepted an Indonesian Skory class destroyer, a much larger and more heavily armed ship, which was in Malaysian territorial waters. He was in the wireless office at the time and a signal came down from the bridge to send a “locating report” which ended with the words “intend engaging” - in other words, the Commanding Officer was not seeking permission to do so. However, the destroyer declared it had lost its way, no engagement took place and the Teal escorted the ship back into international waters.
20.Mr Hunter said he obtained his information about this incident from other crew members. He is aware of the evidence provided by the then Commanding Officer, Lieutenant Commander Murray, to the contrary, supported by a statement of his Executive Officer, that a destroyer had gone aground on a reef in Indonesian waters and he had exchanged pleasantries with the ship. Lieutenant Commander Murray also denied ever sending a signal that he intended engaging or that, as Mr Hunter claimed, the Teal carried twin Vickers machine guns. However, Mr Hunter noted that his account of the Vickers guns was supported by the evidence to the Tribunal of an electronics technician, William Neal, who also manned the Vickers guns (transcript 27 November 2008, pp 7 and 10). In his report dated 31 December 2010, Commodore Mulcare confirmed that in about September 1965, a twin barrel Vickers machine gun was mounted on Teal.
21.In his reports dated 31 May 2001 and 31 May 2007, Commodore Mulcare states that there is no record of such an incident involving an Indonesian destroyer such as that described by Mr Hunter. There is, however, a record of an incident on 28 November 1965 when Teal encountered an Indonesian ‘A’ class patrol boat in Singapore territorial waters. Teal’s ‘Report of Proceedings’ for this incident states:
The vessel was closed by Teal and asked to explain his presence. At this, he altered course and regained his own waters whilst explaining that he was on passage to Pulo Sambo.
22.Commodore Mulcare said he discussed this incident with Lieutenant Commander Murray, and a statement from Lieutenant Commander Murray dated 31 May 2007 was attached to Commodore Mulcare’s report. Lieutenant Commander Murray thought it unlikely that he would have used the words ‘intend engaging’ in the incident involving the patrol boat. Commodore Mulcare said an ‘A’ class patrol boat was probably an ‘Alkai’ class auxiliary patrol craft. He referred to Jane’s Fighting Ships listing for Indonesia for this period which states that these vessels displaced 143 tons, and were of the dimensions “124, 18, 5 feet”. The Tribunal notes, by contrast, that Teal displaced 360 tons and was 154 feet long.
23.Commodore Mulcare noted that both Lieutenant Commander Murray and Commander PJ Cooke-Russell (at the time Teal’s Executive Officer) recalled seeing an Indonesian destroyer aground in Indonesian waters not far from Singapore, and Lieutenant Commander Murray recalls exchanging pleasantries by light. At the hearing on 28 June 2011, when asked about the incidents described by Mr Hunter during his service on Teal, Commodore Mulcare commented that in his experience “memories are selective and are, perhaps, embellished”.
24.Mr Hunter described a further incident when Teal captured about 15 to 18 barter traders in a number of sampans. A ‘prize crew’ was put aboard the sampans to take the prisoners to Port Swettenham (now Port Klang). An hour or so later, Teal went to ‘approach stations’ and the star shell that was fired revealed the sampans, and the prize crew shouting for Teal to hold its fire. Teal redirected the prize crew to Port Swettenham where the prisoners were handed over to police. However, the police released them and Teal recaptured the sampans carrying the barter traders later that night, on that occasion handing them over to the police in Singapore. Mr Hunter said the story circulating among the Teal crew was that these traders were subsequently hanged and never saw their families again.
25.Commodore Mulcare commented on Mr Hunter’s recollection of this incident in his report dated 31 May 2001. He said there is a record of Teal intercepting and arresting two barter trader vessels in the Malacca Strait which were handed over to the Malaysian police. Commander Cooke-Russell said in his statement dated 10 April 2007 that he did not recall “whether any shots were fired on this occasion however it was necessary at times to fire a few Bren gun rounds ahead of intercepted vessels as an encouragement for them to stop”. Another barter trader was arrested that night and a ‘prize crew’ put on board who handed it over to Malaysian police at Port Swettenham. Commodore Mulcare said while barter trading was not permitted in the Malacca Strait it was not a “hanging” offence.
26.Mrs Hunter told the Tribunal that her husband’s attitude to their baby daughter had changed when he returned home after service on HMAS Teal (in February 1966). At that time, their daughter was about 20 months old. Mr Hunter was impatient and would be “down on her” for the slightest thing and had unreasonable expectations of a child of that age. Mrs Hunter also related a “terrible argument” she had with her husband over a pair of shorts she had bought while he was away. She said her husband had changed significantly – she does not know why. He was also not sleeping as he used to. He was restless and would have nightmares, waking up shaking with fear and grabbing hold of her.
27.In answer to questions from the Tribunal, Mrs Hunter said her husband did not talk about his time on Teal and she never heard him talking with his Navy mates about their experiences. She said she did not notice any further change in her husband’s behaviour following the collision between Melbourne and the Frank E Evans. He just commented that what happened was terrible.
28.Mrs Hunter told the Tribunal she does not remember when her husband started drinking every night, but it was a long time ago. For some years, he drank about half a bottle of whisky and up to half a bottle of port every day. Then he moved to drinking red wine and port, drinking about a 4-litre cask of wine every three days. When he drank, he slurred his words, became red in the face and neck and aggressive. Mr Hunter stopped drinking in May 2005 after he developed severe gastritis while drinking wine. He said he started drinking again when, at his 70th birthday party in April 2011, his relatives suggested he should have a drink to celebrate his birthday. It was only a small family party of a dozen or so people. He does not know whether they were aware he has a drinking problem. On that occasion, he drank a single bottle of wine. But soon after, he went out and bought four 4‑litre casks of red wine - four because it is cheaper – and was drinking a 4‑litre cask every three and a bit days.
29.Mr Hunter was drinking like this for about three months and his wife said it had the same effect as before. Mr Hunter said he told Dr Altman about his having resumed drinking and while Dr Altman said he should not be unduly hard on himself over the lapse, Dr Altman said he should stop drinking again. Mr Hunter stopped again when he ran out of casks about two weeks before the hearing and has not consumed any alcohol since. He disciplined himself to do this without the assistance of any medication.
30.In cross-examination, Mr Hunter was asked why, if he found his experiences in the Navy so frightening, he kept on re-listing, serving for a total of 21 years. He said he stayed in the Navy to support his family and because it was something he knew. He agreed that he had a successful career, achieving the rank of Chief Petty Officer. He left the Navy on 25 May 1979 for a new position with the Commonwealth.
31.After initially attributing Mr Hunter’s condition to the collision involving the Melbourne, in a later report dated 25 November 1999, Dr Altman said he was now of the opinion that the conditions diagnosed in his earlier reports occurred as a result of Mr Hunter’s service on HMAS Teal:
In my opinion the stressors he was exposed to on the HMAS Teal were severe enough to cause a Post-traumatic Stress Disorder (with associated Major Depression and Alcohol Dependence). In my opinion the subsequent collision between The Melbourne and the Frank E Evans aggravated his Post-traumatic Stress Disorder.
Dr Altman then cited the incidents described to him by Mr Hunter while he was serving on Teal (referred to above) which led Dr Altman to change his opinion.
32.Mr Hunter’s first claim for PTSD, lodged on 27 July 1998, was refused. A second claim was lodged on 1 February 2000. After that decision was affirmed by the VRB, the parties obtained further evidence in preparation for a hearing before the Tribunal on 5 June 2001. Dr Anthony Dinnen, psychiatrist, provided evidence for the Applicant. In a report dated 31 January 2001, Dr Dinnen stated his opinion:
I believe the patient does suffer from post traumatic stress disorder and alcohol abuse, consequent to his service in the navy over 21 years. The significant traumatic events which he recounted, involving his service on HMAS Teal and later on the Melbourne would provide sufficient “stressors” in my view and based on my experience to cause a post traumatic stress disorder. The patient’s initial proposition, echoed by Dr Altman’s 3rd report [dated 25 November 1999], that service on the Teal predisposed him to the condition which was aggravated by the Melbourne/Evans collision is in accord with my opinion.
33.Mr Hunter was also examined at that time by Dr John Shand, psychiatrist, at the request of the Commission. In a report dated 24 February 2001, Dr Shand stated that in his opinion: “From the history obtained from the veteran, he is suffering from now Chronic Post-Traumatic Stress Disorder With Depressed and Anxious Mood.” Dr Shand referred to the incident described by Mr Hunter relating to the Indonesian destroyer. He noted that this incident occurred during a period of operational service but said he considered that stressor “considerably less significant” than the collision between the Melbourne and the Frank E Evans.
34.Following the hearing in June 2001, the Tribunal set aside the VRB decision under review and found that Mr Hunter suffered from the war-caused disease of anxiety disorder: Re Hunter and Repatriation Commission [2002] AATA 485 (21 June 2002). The Tribunal found, at [32(a)] that the diagnosis of PTSD was “sustainable” but, ultimately, found, at [57], that the SoP concerning PTSD was not satisfied because the requirement for Mr Hunter to have experienced a severe stressor was not satisfied.
35.Dr Altman provided Mr Hunter’s general practitioner with a further report dated 5 February 2004 in which he reiterated his opinion that the stressors that Mr Hunter was exposed to while serving on Teal were severe enough to cause him to suffer from PTSD, and the subsequent stress suffered as a result of the Melbourne/Frank E Evans collision aggravated the PTSD. Dr Altman also reiterated his diagnosis that Mr Hunter suffers from a “severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence”.
36.As noted above, Mr Hunter left the Navy on 26 May 1979 and commenced employment with the Commonwealth in its information management section in Sydney two days later. While in that employment, he undertook three “out of work hours” courses at TAFE over a number of years in records management, computers studies and personnel management. In a statement dated 18 March 2008, Mr Hunter said he was a perfectionist in his work and was very demanding (and it appears unpopular) with the 16 staff reporting to him: many left or sought transfers elsewhere. He said he had breakdowns in 1984 and 1987, on each occasion having six or seven weeks off work.
37.The Tribunal has been provided with a work performance assessment for Mr Hunter dated 25 May 1988 which is revealing about his psychological state. Mr Hunter is described as “an efficient records officer”, who “technically performs very effectively in his current position”. However, he is described as a “difficult subordinate”, given to “truculence”, who is combative, stubborn and inflexible, and finds it difficult to accept the priority of others or to consider alternate plans to his own. He is also said to be “resistant to counselling and guidance where it conflicts with his own opinion” and “has an emotive, unobjective character”.
38.A colleague of Mr Hunter’s in the Commonwealth department, in a statement dated 23 July 2008, refers to Mr Hunter withdrawing from the office setting in the latter stages of his employment and setting himself up in a remote section of the building. He rarely ventured from his new office and was ill at ease out of his comfort zone:
He had difficulty relating to other members of the Sydney office. He suffered from severe mood swings being seemingly quite normal in the morning only to be quiet and sad and disturbed in the afternoon. He did not join other staff in social functions organised in the office. … His demeanour, in the latter part of his employment, was somber, unsmiling and quiet unless provoked. He appeared apprehensive and worried some months prior to his departure.
39.Over time, Mr Hunter held several administrative positions, all at the same level, and increasingly managed to isolate himself, avoiding contact with others in the office. He said he relocated his office to a floor that had no other people on it where he felt in control, and he used to take the least populated route through the office, using the back goods lift or the back stairs to avoid encountering people (transcript 18 March 2008, p37). Entering areas where there were other people made him apprehensive and agitated, he began avoiding answering the telephone, and progressively began to try and offload his responsibilities to others and disguise his mistakes or the fact that he had not undertaken or completed tasks. He became angry at himself and then “would sink into depression”. He was no longer able to cope – he could not do his job anymore - and, finally, Dr Altman certified that he was “totally unfit for work” due to anxiety and depression. Mr Hunter commenced sick leave on 5 February 2004 and never returned to work, resigning with effect from 21 April 2004.
40.On 3 March 2004, Dr Michael Prior, psychiatrist, prepared a report for the Commonwealth department in relation to Mr Hunter’s fitness for work. Dr Prior considered that Mr Hunter was suffering from “Chronic Post Traumatic Stress Disorder with co-morbid Alcohol Abuse against a background of obsessive compulsive personality traits”. At the Tribunal hearing on 27 November 2008, Dr Prior was referred to his opinion that the difficulties Mr Hunter had recently experienced at work were due to cognitive difficulties related to his alcohol intake rather than his chronic PTSD. He said that if Mr Hunter had stopped drinking, so that alcohol was removed from the equation and his problems remained, it would be reasonable to conclude that it was PTSD affecting his ability to work (transcript 27 November 2008, p60).
41.On 6 May 2004, Mr Hunter lodged a claim for an increase in the rate of his disability pension. On 23 December 2004, the Commission accepted his claim for a “depressive disorder” and increased his rate of pension to 100%. On 11 January 2005, Mr Hunter applied to the VRB for a review of this decision.
42.In a report dated 5 May 2005, Dr Altman confirmed that Mr Hunter’s “primary diagnosis is a PTSD – and this PTSD causes severe anxiety and depression”, which are “fundamental reasons for him not being able to work any longer”. On 2 June 2005, Mr Hunter lodged a new claim in respect of PTSD and for an increase in the rate of his pension. On 7 June 2005, the Commission determined that his PTSD was not related to service. On 14 June 2005, Mr Hunter applied to the VRB for a review of this decision. The Tribunal notes that it was in May 2005 that Mr Hunter stopped drinking alcohol after suffering severe gastritis.
43.On 12 October 2005, Mr Hunter was examined by Dr Karl Koller, psychiatrist, at the request of the Applicant. In a report dated 22 October 2005, Dr Koller agreed with Dr Altman and Dr Dinnen that “the diagnosis of PTSD is justified”. He said “the life threatening events” experienced by Mr Hunter during his service on HMAS Teal “meet DSM IV criteria for PTSD”.
44.On 6 September 2006, the VRB affirmed the Commission’s decisions made on 23 December 2004 and 7 June 2005 and, on 9 October 2006, Mr Hunter applied to the Tribunal for a further review.
45.At the request of the Commission, Mr Hunter was examined by Dr John Roberts, psychiatrist, on 13 March 2007. In a report dated 11 April 2007, Dr Roberts stated that in his opinion, “PTSD was never present and alcohol abuse if it was is no longer a factor for consideration”. He said he could “find no evidence of significant anxiety levels”. Dr Roberts said “I totally agree” with a comment made in the VRB decision made on 9 August 2000 at p7 that:
The Board concedes the stressful nature of these experiences, involving perceived rather than real, ‘threat of death or serious injury’ and finds that, in the absence of the reality, the requirements of the definition ‘expressing a severe stressor’ and hence the factor, are not satisfied by reference to the conditions of the veteran’s service on HMAS Teal.
Dr Roberts went on to state “There is no basis of [sic] assert that to imagine something that could have happened but didn’t happen, could produce Post-traumatic stress disorder.”
46.Dr Roberts also gave evidence at the Tribunal hearing on 5 August 2008. He agreed that it would be reasonable to make a diagnosis of alcohol abuse or alcohol dependence in remission where a person has been abstinent for two years (transcript 5 August 2008, p192). In cross-examination, it became apparent that Dr Roberts relied on the VRB decision on 6 September 2006 and the discussion there of the evidence adduced in relation to the alleged incident involving HMAS Teal and a destroyer, in deciding that the incident did not occur as described by Mr Hunter (transcript 5 August 2008, p209).
47.Dr Dinnen provided a further report dated 2 October 2007, having re-examined Mr Hunter on 17 September 2007. He stated:
In my opinion it is nonsense to have anxiety and depressive disorder accepted as being due to service and post traumatic stress disorder and alcohol abuse as being rejected due to service when they are all part and parcel of the same psychiatric condition.
48.At the Tribunal hearing on 27 November 2008, Dr Dinnen reaffirmed his opinion that Mr Hunter suffers from PTSD and alcohol abuse consequent to his service in the Navy over 21 years and that the traumatic events involving his service on HMAS Teal and later on the Melbourne would provide sufficient stressors to cause PTSD (transcript 27 November 2008, p45). Dr Dinnen was critical of the approach taken by Dr Roberts in making his assessment of Mr Hunter and questioned whether he was able to properly evaluate the patient and make a diagnosis (transcript 27 November 2008, p49). Dr Dinnen acknowledged that because Mr Hunter was in the wireless office, his “perception of what was going on might not be exactly in accordance with what was actually happening. His apprehension might be much greater than it would otherwise have been” (transcript 27 November 2008, p56).
49.On 21 April 2009, the Tribunal affirmed the VRB’s decision in relation to PTSD and the rate at which the disability pension was payable to Mr Hunter, but varied the decision to include a finding that Mr Hunter had a war-caused disease of alcohol dependence (in remission). The Tribunal was satisfied that Mr Hunter suffers from PTSD and alcohol dependence (in remission) but found that neither SoP No 5 of 2008 nor SoP No 3 of 1999 (as amended) was satisfied in relation to Mr Hunter’s claim in respect of PTSD. Addressing the fourth stage of Deledio, the Tribunal was satisfied beyond reasonable doubt that Mr Hunter’s PTSD was not related to his operational and/or defence service. As noted above, Justice Perram found that the Tribunal made an error of law by failing to distinguish between the two relevant SoPs.
The Tribunal’s Assessment
50.The present Tribunal is satisfied on the balance of probabilities that Mr Hunter suffers from PTSD. With the exception of Dr Roberts, all the psychiatrists who have examined Mr Hunter have come to this conclusion: that is his treating psychiatrist, Dr Altman, Dr Dinnen, Dr Shand, Dr Koller and Dr Prior. In the light of this medical evidence, Mr Hunter’s account of a number of incidents during his service on HMAS Teal, the symptomatology described by Mr Hunter, by Mrs Hunter, by his supervisor and by one of his colleagues at the Sydney office of the Commonwealth department, the Tribunal has decided to disregard Dr Roberts’ report which it found unconvincing. Dr Roberts appears to have been focused on whether SoP No 5 of 2008 was satisfied (without distinguishing the requirements of SoP No 5 from those of SoP No 3 of 1999) rather than focusing on a diagnosis for Mr Hunter with reference to his history.
51.The fact that Mr Hunter’s recollection of the stressful incidents during his service on Teal was not entirely accurate or, in the case of the incident he describes with an Indonesian destroyer, confused, is not surprising after the passage of many years. It also needs to be remembered, as Commodore Mulcare recognised in his report dated 31 December 2010, that as the senior radio operator on board, “Mr Hunter would have been closed up in the wireless office during Approach Stations”, when the Teal, which would have been darkened at night while on patrol, was approaching a contact. Mr Hunter would have been busy contacting operational authorities ashore and, the Tribunal assumes, apart from information he elicited from such communications, would have been reliant on other crew members who were on deck and able to see what was happening for an account of an incident after the event. In the light of Mr Hunter’s knowing of the incident involving Teal in December 1964 and, later, of the incident involving the Woolaston, it is not surprising that he might have been frightened.
52.Commodore Mulcare told the Tribunal at the hearing on 28 June 2011 that 10‑day patrols of the kind undertaken by HMAS Teal would be very tiring for the crew. Fishing boats were endemic in the Singapore and Malacca Straits and the real problem was working out what was a suspect vessel. While a minesweeper was on patrol, a radio operator would be asked to send ‘sighting reports’ in relation to contacts made. In the context of such patrols, significant events would be likely to stick in your mind but probably not just the sighting of a fishing boat. Commodore Mulcare noted that memories are selective and, over time, are likely to be embellished. In the Tribunal’s view, what is clear from Mr Hunter’s account of the incidents is that, closed up in the wireless office, he was very frightened at times. He told Dr Dinnen that he “had soiled himself” at the time of the incident with what he believes was an Indonesian destroyer (report dated 2 October 2007, p3).
53.The Tribunal, having found that Mr Hunter suffers from PTSD, must now consider whether his PTSD is related to his operational service.
Is Mr Hunter’s PTSD related to his operational service?
54. The approach to be adopted in determining this issue is that set out by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144 (Deledio).
55.The first step prescribed by the Court requires the Tribunal, having considered the material before it, to be satisfied that the material points to a hypothesis connecting the condition with the circumstances of Mr Hunter’s service. This is not a stage at which the Tribunal makes any findings of fact. In the Tribunal’s view, there is sufficient medical and other evidence provided by the Applicant to be satisfied that there is material pointing to such a hypothesis.
56.If such a hypothesis arises, the second step is to ascertain whether there is a relevant Statement of Principles (SoP). As stated above, the relevant SoP in this case is Instrument No 3 of 1999 concerning PTSD, as amended by Instrument No 54 of 1999.
57.The third step requires the Tribunal to form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in the relevant SoP(s). Justice Perram referred to the Tribunal’s discussion of this step in the Statement of Reasons for its decision:
12. The process being undertaken by the Tribunal at this point was what has come to be referred to as the third stage of the Deledio process (a reference to Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97 per Beaumont, Hill and O’Connor JJ) which is a convenient, although not entirely accurate, gloss on the Act. The stages describe the steps which a decision-maker should take in dealing with a veteran’s claim. The third step was explained by the Full Court in these terms:
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 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.
13. The task at hand, therefore, is the testing of a hypothesis and not the examination of the correctness or otherwise of the premises upon which the hypothesis may rest. Consequently, the Tribunal is not to determine whether the material before it establishes the premises in question; rather it is to determine whether the material before it “points to some fact or facts (“the raised facts”) which support the hypothesis” (Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ) which is another way of saying that “the material before the Commission must raise some fact or facts which give rise to the hypothesis” (Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 569 per Mason CJ, Gaudron and McHugh JJ). A corollary of those principles is that in this third stage, proof of the facts is not required nor, correspondingly, is the Tribunal called upon to make findings of fact.
58.As stated above, Justice Perram found that the Tribunal had misinterpreted the definition of “experiencing a stressor” that was inserted in SoP No 3 of 1999 by SoP No 54 of 1999:
“‘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 another person’s, physical integrity.
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;”.
59.Justice Perram said, at [20]:
That definition would be satisfied if, inter alia, there was material before the Tribunal suggesting that Mr Hunter had been confronted with “an event or events that involved threat or death or serious injury, to the person or another person’s physical integrity”. In Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283 Mansfield J (at 296 [55]) said that a threat could be made out if the event “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.”
60.Of importance is that the definition of “experiencing a stressor” includes being “confronted with an event or events”, words which were omitted from the SoP No 5 of 2008 which require, relevantly, the ‘experiencing’ of a stressor. Justice Perram explained, at [22], that being confronted with an event or events “includes being confronted ‘in the mind’” (Woodward v Repatriation Commission (2003) 131 FCR 473, at 495[123], per Black CJ, Weinberg and Selway JJ).
61.In SoP No 3 of 1999, the factors that must as a minimum exist are set out in paragraph 5:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
62.Justice Perram said, at [28], that “The question of whether the material before the Tribunal was capable of sustaining a particular factual conclusion is itself is a question of law”. He stated, at [25]:
The material before the Tribunal clearly was capable of sustaining a potential finding that constituted a threat of the kind referred to in Stoddert [sic] and Woodward or, even, just as a matter of common sense. The material included the following matters:
(a) the crew who had been relieved by the crew of which Mr Hunter was a member had reported that they had been fired upon by a sampan;
(b) each time the HMAS Teal picked up a contact on the radar and could not readily identify it, it would approach under the cover of darkness. Only when a star flare was fired was it known whether it was debris or a contact;
(c) Mr Hunter was up on deck initially but was later below deck. The atmosphere whilst this was going on was tense and frightening.
63.The present Tribunal agrees with this assessment. We are satisfied that the material before us - in particular, Mr Hunter’s account of the incidents that affected him while serving on HMAS Teal, which include both the matters identified by Justice Perram above but also the incident involving the Indonesian patrol boat and the incident involving HMS Woolaston, when considered in association with Commodore Mulcare’s evidence – is capable of sustaining the required factual conclusion that Mr Hunter experienced a severe stressor prior to the clinical onset of PTSD. Thus, in our view, a reasonable hypothesis has been raised connecting Mr Hunter’s PTSD with his operational service.
64.Having formed the opinion that the hypothesis raised is a reasonable one, the Tribunal must then (at the fourth step prescribed by the Court in Deledio) consider whether, pursuant to s 120(1) of the Act, it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Hunter’s PTSD was war-caused. We have set out the relevant evidence above. We found Mr and Mrs Hunter’s evidence about the effect that Mr Hunter’s service on HMAS Teal had on him to be credible. The fact that Mr Hunter’s recollection of events in question is not entirely accurate and, in particular, that it was an Indonesian patrol boat and not a destroyer that was involved in an incident with Teal on 28 November 1965, is both unsurprising in the circumstances and insufficient to persuade us beyond reasonable doubt that there is no sufficient ground for finding that Mr Hunter’s PTSD was war-caused.
65.The Tribunal therefore concludes that Mr Hunter’s PTSD was war-caused.
Is Mr Hunter’s Alcohol Dependence related to his operational service?
66.In oral evidence at the second Tribunal hearing on 18 March 2008, Mr Hunter said that before being posted to HMAS Teal, he used to drink small amounts of alcohol socially. For example, he might have a beer if there was a beer issue on board but sometimes he might pass it up (transcript 18 March 2008, p 30). On the Teal, he was drinking more and more beer and recounted an occasion in Kuching when “we all proceeded to get smashed” (transcript p 32).
67.Mrs Hunter confirmed that when she and her husband were first married “we didn’t drink much at all”. However, around 1967 or 1968, Mr Hunter was drinking more and binge drinking on whisky. As years passed, he was drinking every night. At the Tribunal hearing on 18 March 2008, Mr Hunter said after serving on Teal, he was drinking half a bottle of scotch every night (transcript p 32). In about 1987, he had severe gastritis which he thought was caused by the whisky, so he switched to drinking wine: “I was drinking about a litre of red wine in a night, after work and then I would top it off with half a bottle of port” (transcript p 31). Mr Hunter confirmed this at the hearing on 27 June 2011. He said he went on drinking like this until he experienced severe gastritis while on holiday in Port Douglas in April 2005. At that time, he stopped drinking completely and for the next six years he drank no alcohol.
68.At the hearing on 27 June 2011, Mr Hunter said he resumed drinking alcohol at his 70th birthday in April 2011 when one of his relatives at his birthday party suggested that he had to have a drink to celebrate his birthday. On that occasion, he drank a bottle of wine. Soon after, he purchased four 4 litre casks of wine. One 4 litre cask would last him a bit over three days. He continued drinking like this until about two weeks before the hearing when he ran out of wine and decided not to replace the casks. He has not drunk any alcohol since.
69.The Tribunal notes that Mr Hunter had three ‘drink driving’ convictions while in the Navy and, it appears, one since. In a statement dated 1 June 2001, Mr Hunter said that after his posting to Teal:
5. … I was very aggressive, controlling and angry …
6. I no longer wished any social contact with others and terminated a friendship my wife had started with another married couple. My wife attempted to dissuade me and this resulted in me becoming violent. Striking her until she fell to the ground.
70.At the hearing on 27 June 2011, Mrs Hunter said when her husband drank, he slurred his words, became red in the face and neck and aggressive. This happened every day. When he started drinking again in April 2011, his drinking had the same effect as before.
71.Mr Hunter’s drinking is also documented by the various doctors who examined him. For example, Dr Dinnen, in his report dated 31 January 2001, recorded Mr Hunter telling him that he was drinking a bottle of red wine a day together with half a bottle of port. As stated above, Dr Dinnen diagnosed PTSD and alcohol abuse consequent to his service in the Navy. In a report dated 5 February 2004, Dr Altman diagnosed severe chronic PTSD with an associated Major Depression and Alcohol Dependence. In a report dated 3 March 2004, Dr Prior diagnosed chronic PTSD with co-morbid Alcohol Abuse on a background of obsessive personality traits. It is only Dr Roberts who failed to acknowledge Mr Hunter’s addiction on the ground that he was no longer consuming alcohol and had not, at that time (13 March 2007), consumed any alcohol since April 2005.
72.In the Tribunal’s opinion, the evidence in support of a finding that Mr Hunter suffers from alcohol dependence (in remission) is overwhelming and the Tribunal is satisfied that this is an appropriate diagnosis. Turning to whether this disease is related to Mr Hunter’s operational service, and the four steps prescribed by the Full Federal Court in Deledio, the Tribunal is satisfied, in relation to the first step, that the material before it points to a hypothesis connecting the condition with the circumstances of Mr Hunter’s operational service. With regard to the second step, the current SoP concerning Alcohol Dependence or Alcohol Abuse is Instrument No 1 of 2009. However, the Applicant relies on the relevant SoP in effect at the time of the Commission’s decision which was that concerning Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998 (SoP No 76 of 1998).
73.At the third step, the Tribunal must form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in the relevant SoP. ‘Alcohol dependence’ and ‘alcohol abuse’ are defined in clause 2 of SoP No 76. In our opinion, there is sufficient evidence before the Tribunal pointing to the diagnostic criteria for ‘alcohol dependence’, as defined, being met: Mr and Mrs Hunter’s evidence of his alcohol consumption referred to above, also referred to in the medical reports; its effect on his health, for example, severe gastritis, and cognitive difficulties (Dr Prior, transcript 27 November 2008, p61); and on his social, occupational and recreational activities, in particular the social isolation that Mr Hunter described.
74.Clause 4 states that at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. The relevant factors include “(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse”. ‘Psychiatric disorder’ is defined in clause 8 as meaning “any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV”.
75.The Tribunal is satisfied that there is material pointing to Mr Hunter suffering from PTSD in the period following his service on HMAS Teal at a time when he began consuming a significant amount of alcohol on a daily basis. Although it is difficult to pinpoint any particular date, it is likely that this occurred in the late 1960s and the material points to Mr Hunter’s alcohol dependence and abuse, as defined, dating from that time. Thus, we find that the third step in Deledio is satisfied.
76.With regard to the fourth step, we are not satisfied that any of the relevant facts constituting the hypothesis are disproved beyond reasonable doubt. We therefore conclude that Mr Hunter’s disease of alcohol dependence (in remission) is related to his operational service and is therefore war-caused.
Conclusion
77.The Tribunal has concluded that both Mr Hunter’s PTSD and alcohol dependence (in remission) are war-caused. We will therefore set aside the VRB’s decision dated 6 September 2006 affirming the Commission’s decisions dated 23 December 2004 and 7 June 2005. The Applicant has requested that in this event we should substitute a decision finding that the Commonwealth is liable under s 13(1) of the Act in respect of PTSD and alcohol dependence (in remission) from 2 March 2005 and remit the matter to the Commission to assess the rate of pension payable to Mr Hunter from 6 May 2004 and from 2 March 2005. In our view, given the lapse of time since the rate of Mr Hunter’s pension was most recently assessed, this is the appropriate decision for us to make.
Decision
78.The Tribunal sets aside the decision under review and substitutes a decision that the Commonwealth is liable to pay a pension to Mr Hunter under s 13(1) of the Veterans’ Entitlement Act 1986 in respect of the war-caused diseases Post Traumatic Stress Disorder and Alcohol Dependence (in remission) from 2 March 2005. The Tribunal remits to the Commission the assessment of the rate of disability pension payable to Mr Hunter from 6 May 2004 and from 2 March 2005.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President, and Air Vice-Marshal (Dr) T K Austin AM, Member.
Signed:.........[sgd]......................................................................
AssociateDates of Hearing 27 and 28 June 2011
Date of Decision 26 July 2011
Counsel for the Applicant C Colborne
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent R Henderson
Solicitor for the Respondent Australian Government Solicitor
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