Huntley and Repatriation Commission
[2004] AATA 820
•6 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 820
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1148
VETERANS' APPEALS DIVISION )
Re RAYMOND DAVID HUNTLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date6 August 2004
PlaceBrisbane
Decision The Tribunal:
(a) affirms the decision under review insofar as it relates to post traumatic stress disorder and depressive disorder; and
(b) sets aside the decision under review insofar as it relates to anxiety disorder and alcohol dependence or abuse and substitutes the decision that anxiety disorder and alcohol dependence or abuse are war-caused diseases, that pension for any incapacity associated with those diseases is payable to the applicant from and including 1 December 2000 and that the matter of assessment of that incapacity is remitted to the Repatriation Commission.
[Sgd]
……..RG Kenny…….
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service in Malaya – operational service continuing during period of leave - appropriate diagnosis of psychiatric conditions – application of Statements of Principles – diagnostic criteria for post traumatic stress disorder not met - reasonable hypothesis of relevant relationship to service raised for anxiety disorder and alcohol dependence or abuse – assessment remitted to Repatriation Commission
Veterans’ Entitlements Act 1986 ss 5D, 6D, 7, 13, 14, 120, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
2 August 2004 Mr RG Kenny, Member Background
1. Raymond Huntley (the applicant) served in the Australian Army from 23 January 1961 until 22 January 1964 and that period of overall service included service in the then Federation of Malaya from 12 October 1961 until 27 May 1963. On 1 March 2001, he lodged a claim for the acceptance of post traumatic stress disorder as being related to his Malayan service. That claim, made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), was rejected by a delegate of the Repatriation Commission (the respondent) on 13 June 2001.
2. On 26 August 2002, the matter was heard by the Veterans’ Review Board (VRB) which varied the decision by adding the diagnoses of generalised anxiety disorder, depressive disorder and alcohol dependence or abuse. The VRB affirmed the decision, rejecting the claim for post traumatic stress disorder and also for generalised anxiety disorder, depressive disorder and alcohol dependence or abuse. In relation to depressive disorder, the VRB determined that there was no such incapacity present in the applicant. On 13 December 2002, the applicant sought review of the VRB decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, the applicant was represented by Ms B Carter-Nicoll of counsel and the respondent was represented by Mr B Williams. The following material was tendered and taken into evidence:
Exhibit 1:the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents – T1 to T6);
Exhibit 2:a statement, dated 14 February 2003, by the applicant;
Exhibit 3:a statement, dated 23 June 2003, by Sandra Ward;
Exhibit 4:a further statement, dated 8 July 2003, by the applicant;
Exhibit 5:a medical report, dated 24 March 2004, by Dr Ivan Holm, psychiatrist;
Exhibit 6:a further report, dated 12 September 2001, from Dr Holm; and
Exhibit 7:a medical report, dated 30 July 2003, from Dr William Kingswell, psychiatrist.
Issues and Legislation
4. The term disease is defined in broad terms in section 5D of the Act and it is not disputed that this extends to psychiatric conditions of the kind noted above. The applicant’s claim is based on the contention that his psychiatric conditions are war-caused and, in that regard, subsection 9(1) of the Act reads:
“Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
5. It is not disputed that the applicant’s service in the period from 12 October 1961 until 27 May 1963 in the then Federation of Malaya constitutes operational service in accordance with paragraph 6D(1)(b) of the Act or that it also constitutes eligible war service in accordance with section 7 of the Act.
6. The standard of proof applicable to the determination of entitlement claims for the type of service rendered by the applicant is set out in subsection 120(1) of the Act which reads:
“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.”
7. The operation of that provision is affected by the terms of subsection 120(3) of the Act and section 120A of the Act which read:
“120(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
…
120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
120A(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
120A(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
120A(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
8. Those provisions relate to matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority (RMA). Before applying those provisions of causation, however, it is necessary to consider the appropriate diagnoses of conditions that the applicant has. The standard of proof for determining matters of diagnosis is provided for in subsection 120(4) of the Act and this requires such matters to be determined on the balance of probabilities: see Fogarty v Repatriation Commission [2003] FCAFC 136 at par. [34] and Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634.
9. Accordingly, the first issue for the Tribunal to determine is the psychiatric conditions from which the applicant suffers and the second issue will be whether any such conditions are causally associated with his eligible war service. Relevant to each of those issues are the following Statements of Principles:
§ depressive disorder: Instrument No 58 of 1998;
§ psychoactive substance abuse or dependence: Instrument No 76 of 1998;
§ anxiety disorder: Instrument No 1 of 2000; and
§ post traumatic stress disorder: Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999).
Applicant’s Case
10. Ms Carter-Nicoll submitted that the applicant suffered from post traumatic stress disorder, generalised anxiety disorder and alcohol dependence or abuse but conceded that a finding of depressive disorder was not open on the evidence. She relied upon the evidence of Dr Holm, the applicant’s treating psychiatrist, and on three incidents which occurred to the applicant during his operational service and which, she submitted, constituted triggering mechanisms for the development of these conditions. She described these as “the train incident”, “the jungle incident” and “the body incident”. These are detailed below. She noted that the train incident and the body incident had occurred during periods when the applicant was on leave in Singapore and Malacca, respectively, but, nevertheless, submitted that these periods of leave were embraced, for the purposes of the Act, by his operational service.
11. In his evidence, the applicant detailed the three incidents described by Ms Carter-Nicoll. In relation to the train incident, he gave the following account. In mid-1962, he and another soldier were on leave in Singapore and were walking along an embankment above a railway line. It was night-time and quite dark. They heard a commotion on the railway line and noted lights and a police presence on the track. They decided to investigate and climbed down the embankment and began advancing towards the lights and the police who, at that stage, were some 50 metres away. The police began screaming and waving their arms at them and the applicant then noted blood splattered about the railway line and parts of a limb. He stood in what he described as “guts” which marked his shoe and, subsequently, he had to clean it. At that stage, the police came to them and told them to get out of there so they left the scene. He had no clear recollection of the body parts that he saw. He said that it may have been an arm but that he “couldn’t tell what it looked like”. He said that he “felt bad” and “not too well” at the time but did not report the matter to anyone in authority.
12. In relation to the jungle incident, the applicant gave the following account. Some one or two months after the train incident, he was involved in patrols near the Thai border. He had been engaged in training for these and carrying them out since he had arrived in Malaya some nine or ten months earlier. On the day before the train incident, there had been a sighting of enemy soldiers and, on the following day, he was involved in a patrol which attempted to find traces of them. At a point during this patrol, he felt the need to defecate and so advised a fellow soldier before he went into the jungle to relieve himself. On returning to the path that he and the other soldiers had been following, he realised that the others had continued and that he was alone. He said he felt lost and was “a little bit worried”. He said he had a fear of being captured and started walking to where he thought the soldiers had continued on their patrol. He thought he might become lost so he stopped and waited in that position. Eventually, he heard noises and was initially uncertain as to whether it was the patrol or some enemy element but, nevertheless, he simply sat and waited for the on-comers to arrive and was relieved to find that it was the patrol which had returned. He received a “dressing down” from the sergeant in charge of the patrol but no formal action was taken. This was because he had advised one of the soldiers of his intention and that soldier had not communicated the information to the sergeant. He said that, after he had been re-united with the others, the patrol continued on for another two hours or so and then returned to base.
13. In relation to the body incident, the applicant gave the following account. He and other soldiers were on leave in Malacca when they went to a dance hall. On entering, they noted that there was blood on the floor and that there was a body, covered with a sheet, lying on the floor. They immediately decided to leave and did so.
14. In relation to his alcohol consumption, the applicant said that his problems began after the train incident. He said that, prior to this, he was not in the practice of consuming alcohol to an extent greater than two or three cans of beer in the mess every couple of days. After the train incident, he said he felt “edgy” and alcohol assisted him. He said that, as his period in Malaya continued, he drank increasing amounts of alcohol and would visit the mess on a daily basis. He said his practice was to consume alcohol in the presence and company of his fellow soldiers and that, on return to Australia, he continued to consume alcohol on a daily basis although he did this with civilian friends. He said he did not continue his association with soldiers but continued his alcohol consumption in hotels with his work-mates.
15. The applicant was asked whether he thought about the incidents that occurred to him during his service. He said that, when he watches television and sees incidents similar to those which he experienced, he recalls the incidents. He said he is unable to travel by train but was unable to give an explanation of that although he also said he does not like travelling by aircraft.
16. The applicant was referred to the reports of Dr Holm who, in his first report dated 6 June 2001, made reference only to the jungle incident. The applicant’s explanation for this was that, initially, he had seen an advocate but had only been asked by him about events that occurred on the Thai border. He was then sent by that advocate to Dr Holm and he repeated to Dr Holm the same information that he had given to the advocate and, therefore, did not mention the train incident or the body incident. He said that, after his claim had been rejected by the Commission, he then saw a different advocate who advised him that any aspect of his service, including the incidents in Singapore and Malacca, should be outlined to Dr Holm. He said this was why these matters appeared in subsequent reports of Dr Holm.
17. In evidence was a handwritten statement which was completed by the applicant. He was unable to recall when he did this although he accepted that he had prepared it as part of his claim procedure. Therein, he said that his problems first started while he was on patrol on the Thai border. In cross-examination, he conceded this was not correct and that his problems began one or two months earlier following upon the train incident.
18. The applicant agreed that he had experienced stressful events in late 1999 and 2000 when his father and then his girlfriend died. However, he said he had forewarning of each of these events and was prepared for them. He said he could not recall whether he had received any counselling at that time in respect of those events.
Medical Evidence
Dr Ivan Holm
19. In evidence were four reports completed by Dr Holm. In the first of these, dated 6 June 2001, he diagnosed post traumatic stress disorder and alcohol dependence or abuse and expressed the opinion that these were related to his service in Malaya. In that report, the only incident nominated as being of relevance is the jungle incident. In a further report, dated 12 September 2001 (Exhibit 6), Dr Holm made reference only to chronic post traumatic stress disorder as being present in the applicant.
20. In his next report, dated 22 May 2002, Dr Holm diagnosed generalised anxiety disorder and alcohol dependence and abuse and attributed these to the applicant’s Malayan service and, in that report, referred to both the jungle incident and the train incident. In relation to post traumatic stress disorder, Dr Holm said he maintained his opinion that the applicant suffered from this condition but acknowledged that there was legitimate debate as to whether the experiences of the applicant were sufficient to satisfy the causal criteria in the Statement of Principles. In his recent report of 24 March 2004 (Exhibit 5), he described the applicant as having “symptoms consistent with a diagnosis of chronic post traumatic stress disorder” and he went on to conclude that he has a diagnosable major depressive disorder, generalised anxiety disorder and alcohol dependence or abuse. Dr Holm did not make reference to the body incident at Malacca but described the other incidents in the following way:
“The question of Mr Huntley’s experiences in Malaya has been the subject of some debate. He describes clearly two incidents in particular which he experienced as severely stressful. The first as has been well documented and which he describes in some detail was that when he was on patrol and was separated and lost for some time after having had to stop to relieve his bowels. He was lost by himself in the jungle in an area known to be frequented by a hostile enemy. Mr Huntley’s intense fear of being captured or killed were he to come in contact with the enemy is quite realistic and he describes experiencing intense fear and helplessness at this time. This experience would seem to comply quite clearly with the definition of experiencing a severe stressor used for the diagnosis of Post Traumatic Stress Disorder.
The other significant incident he recalls was the so called train incident when he and a friend while on leave were confronted by the gruesome sight of a dismembered body where somebody had been run over by a train. He describes being sickened and horrified heightened by the fact that he accidentally stood in the entrails of the body on the track and saw dismembered limbs. Again Mr Huntley describes quite clearly experiencing intense horror and again this is very much along the lines of the definition of experiencing a severe stressor for the diagnosis of PTSD.
Similarly these incidents would also fulfil the criteria for Anxiety Disorder as per the definition of experiencing a severe psychosocial stressor.
With regard to the criteria in relation to the diagnosis of Alcohol Abuse and Dependence it is clear from Mr Huntley’s history that his pattern of significant Alcohol Abuse and Dependence developed with and in conjunction with following his significant psychiatric symptoms.”
21. In his oral evidence, Dr Holm said that the train incident and the jungle incident were both stressful for the applicant and he said that the jungle incident may have been the last straw for him. Dr Holm agreed that he had relied on the history of events given by the applicant although he said that he had, subsequent to his early reports, seen a letter written by the applicant’s sister, Sandra Ward, which suggested that there had been changes in the applicant’s personality upon returning from his overseas military service.
22. Dr Holm confirmed his diagnoses of post traumatic stress disorder, generalised anxiety disorder and alcohol dependence or abuse although, in respect of depressive disorder, he conceded that this was a condition that the applicant had on only an intermittent basis.
Dr William Kingswell
23. Dr Kingswell completed a report on 30 July 2003 (Exhibit 7). He saw the applicant on only one occasion but had read the applicant’s statements and the reports of Dr Holm. In relation to the events which occurred during service, Dr Kingswell wrote:
“Mr Huntley described an incident in which he was lost in the jungle for an hour. He said from that point on, he had ‘a thing about being captured’.
Mr Huntley said that on a date in 1962, he was out drinking in Singapore. On the way home, he was walking with soldier Keith Heavey. He said they were walking on the train line and came upon a dismembered body. Mr Huntley said he ‘stood in guts’.
Mr Huntley said on another occasion he was exposed to a blood stain in a dance hall. Somebody had been ‘bumped off’, he said. Mr Huntley didn’t see the body.
Mr Huntley said that since his Army experience, he had from time to time experienced thoughts about the incidents. He explained ‘it comes to bear upon me from time to time’. Such memories he said occurred every week and were aggravated by talking to other soldiers or being exposed to media such as the Iraq coverage. He did not like travelling by train as a result.”
24. In relation to the diagnosis of psychiatric conditions in the applicant, Dr Kingswell describes alcohol dependence and he noted that the applicant was in the habit of consuming more than twenty standard drinks per day. He continued:
“Mr Huntley was anxious at times if reminded of his military experiences. He harboured fears regarding capture. However, he did not describe pervasive anxiety. I am not of the view that a diagnosis of generalised anxiety disorder can be made with any confidence in the setting of alcohol dependence.
Notwithstanding the Veterans Review Board’s concerns as to the significance of the stresses described by Mr Huntley, a diagnosis of post traumatic stress disorder cannot be made. Mr Huntley does not describe traumatic events as persistently re-experienced as either nightmares or flashbacks. Mr Huntley did describe some reactivation of memories of his experiences when reminded by conversations or current events.”
25. In his evidence, Dr Kingswell confirmed what he had written in his report that it was not possible to diagnose post traumatic stress disorder in the applicant because of a failure by him to meet one of the diagnostic criteria (ie the second thereof) as provided for in DSM-IV and reproduced in the Statement of Principles. This reads:
“(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;…”
Consideration
26. Each of the Statements of Principles, referred to above for the four psychiatric conditions under consideration, lists diagnostic criteria from DSM-IV which must be met before the relevant diagnosis can be entered. I am satisfied, on the evidence of both Dr Holm and Dr Kingswell, that the applicant suffers from alcohol dependence or abuse. Equally, on their reports, I am satisfied that the applicant does not meet the criteria for a diagnosis of depressive disorder to be made.
27. In relation to post traumatic stress disorder, Dr Kingswell is of the opinion that the second of the DSM-IV factors is not met whilst Dr Holm is of the opinion that all of those criteria are satisfied in the applicant’s case. As noted above (see par 25), the traumatic event which the person is said to have experienced must be persistently re-experienced in one or more of the ways outlined. In his evidence, the applicant said that he thinks of these events that occurred in Malaya when they are triggered by television coverage. Dr Kingswell’s evidence was that this was not sufficient to satisfy the diagnostic criterion. In that regard, Dr Holm, in his report of 24 March 2004, wrote:
“With respect to Criteria B he describes persistently re-experiencing the traumatic events in the form of distressing recollections as well as occasional nightmares. He reports psychological distress at exposure to cues that symbolize these events.”
28. In his earlier report of 6 June 2001, Dr Holm provided a slightly different summary:
“With respect to Criteria B he describes persistently re-experiencing the traumatic events in the form of traumatic and intrusive recollections as well as distressing nightmares. He also reports psychological distress at exposure to cues that symbolize these events.”
29. In his evidence, Dr Kingswell said that the applicant denied having nightmares and the applicant’s evidence to the Tribunal was that he was reminded of these things when he saw war-related events on television. The Statement of Principles for post traumatic stress disorder in section 2(b) thereof describes post traumatic stress disorder as meaning a psychiatric condition meeting the description taken from DSM-IV which includes six criteria. Criterion B is listed above and, in this case, I am satisfied, on the balance of probabilities, that Criterion B is not met by mere recollection of events on occasions when prompted by scenes on television and I accept the evidence of Dr Kingswell that this not the same as persistently re-experiencing the events in any of the ways described in the DSM-IV criterion. Therefore, I am satisfied that a diagnosis of post traumatic stress disorder cannot be made.
30. In relation to generalised anxiety disorder, Dr Kingswell was unable to diagnose the condition because of the masking effects on the applicant’s overall symptomatology which flow from his alcohol dependence or abuse. However, Dr Holm is of the opinion that the condition is present and has been for many years. He has seen the applicant on many occasions as his treating psychiatrist and I am satisfied that, on his evidence, a diagnosis of generalised anxiety disorder can be made in the applicant’s case.
Relationship To Service
31. Mr Williams submitted that events which occurred whilst the applicant was on leave in Singapore or Malacca cannot be relied upon to establish a causal association between the condition and his eligible war service. I do not accept that submission. The period of operational service extended, in this case, from the time when the applicant left Australia on 12 October 1961 until 27 May 1963 which is a date nominated in paragraph 6D(1)(b) of the Act as terminating service in the then Federation of Malaya. During that period, the applicant was rendering operational service as required by subsection 9(1) of the Act and none of the circumstances of preclusion in the remainder of that provision are applicable to him. I am satisfied that the applicant was on operational service throughout that period including the times when he was on leave in Singapore and Malacca.
32. In circumstances where operational service has been rendered, the procedure to be adopted in determining causation was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms:
"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 hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by 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 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused... 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.”
Anxiety Disorder
33. Ms Carter-Nicoll submitted that each of the three incidents provided the relevant causal nexus between anxiety disorder and the applicant’s service. I accept that this constitutes an hypothesis of a relationship to service in accordance with the first of the Deledio steps. The Statement of Principles which needs to be considered in accordance with the second of those steps is Instrument No 1 of 2000 and the relevant factor, which is set out in paragraph 5(a)(ii) thereof, reads:
“(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;”
34. The term severe psychosocial stressor is then defined in the Statement of Principles as meaning:
“…an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
35. The third step in the procedure noted in Deledio’s case is to determine whether the hypothesis raised is a reasonable one and this will be so if the factor, noted above, is pointed to by the evidence. An analysis of the experiencing of a severe psychosocial stressor involves a consideration of both objective and subjective elements. In White v Repatriation Commission [2004] FCA 633, Spender J put the matter thus:
“28. The reference to ‘an identifiable occurrence’ is objective. The examples given in the definition are of the kinds of ‘identifiable occurrence’ that are contemplated. Counsel for the applicant, Mr Darin Honchin referred to Lees v Repatriation Commission [2002] AATA 98 at par 90, where the Tribunal stated that the examples given in the SoP are ‘examples of what is meant by ‘substantial distress’’. In my opinion, the ordinary language of the definition makes it clear that the examples given are of the ‘identifiable occurrences’ contemplated, not of ‘substantial distress’. The examples are of ‘occurrences’, not emotions.
29. The reference to ‘experiencing’ a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase ‘experiencing a severe stressor’ in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence ‘that evokes feelings of substantial distress in an individual’ also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase ‘experiencing a severe stressor’.
30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
36. I do not accept the submission that the train or body incidents, as described above, point to a situation where a reasonable person in the position that the applicant claimed he was in on those occasions would experience feelings of substantial distress. Also, I do not accept that, subjectively, they point to a situation where these feelings were experienced by the applicant at the time. In his evidence, he said, in relation to the body incident, that his main concern was to quit the scene. In relation to the train incident, he said that he did not feel “too well” at the time and that, subsequently, he had to clean his shoe. In each of those cases, there was no evidence given of subjective distress by him. Whilst this third stage of the Deledio process is not concerned with fact-finding, I have noted the inconsistencies in the applicant’s descriptions of what occurred during the train incident. He told Dr Holm of “the gruesome sight of a dismembered body” and of seeing “dismembered limbs” on the railway line. He told Dr Kingswell of a “dismembered body” and yet his evidence to the Tribunal was that he had no clear recollection of the body parts that he saw, that it may have been an arm but that he “couldn’t tell what it looked like”. Perhaps this is not surprising because he also told the Tribunal that it was dark and that he was some 50 metres from where the police and the illuminated area was.
37. In relation to the jungle incident, as described above, I accept that, objectively perceived, a reasonable person in the position of the applicant at the time might be affected in the manner described in the definition of severe psychosocial stressor and the evidence also points to the applicant, in a subjective sense, meeting that requirement.
38. In addition to the requirement of the severe psychosocial stressor, the factor in the Statement of Principles requires that material before the Tribunal points to the clinical onset of anxiety disorder being within two years of experiencing the stressor. The term clinical onset has not been defined by the RMA. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670, the Tribunal said in relation to the term:
“…we consider there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
39. In Re Sandiford and Repatriation Commission (1998) 27 AAR 210 at 217, the Tribunal again referred to the concept of clinical onset, saying:
“If a patient’s symptoms at a point in time can be connected to or linked to a particular injury upon examination (later) by a doctor, …the ‘clinical onset’ was at the point in time when those symptoms manifested, necessarily being at a point in time earlier than when the doctor makes a diagnosis or gives an opinion.”
40. That approach was referred to with apparent approval by Branson J in Repatriation Commission v Cornelius [2002] FCA 750. On this interpretation of clinical onset, it is not sufficient for an applicant to state simply that symptoms are present or were present at some earlier time. The applicant must describe those symptoms to a medical practitioner who must then be able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time. In this case, Dr Holm has expressed the opinion that the condition in the applicant has been present over the years since the completion of his military service. In that regard, he placed reliance on what he was told by the applicant and also the evidence of the applicant’s sister, Sandra Ward (Exhibit 3). This points to satisfaction of this time-related element of the factor in the Statement of Principles.
41. I accept that the hypothesis advanced by Ms Carter-Nicoll in relation to the jungle incident is reasonable because it fits the template of the Statement of Principles in relation to experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder. Therefore, in accordance with step four in the Deledioprocedure, subsection 120(1) of the Act must be applied and anxiety disorder will be a war-caused disease unless I am satisfied beyond reasonable doubt that it is not. In that regard, I have some reservations about the extent to which the jungle incident, in fact, constituted a severe psychosocial stressor for the applicant. He was alone for a relatively short period; he was in an area which his patrol had already passed through without making any contact with an enemy presence; he had been trained for and had engaged in such patrols over a period of several months; he had the presence of mind to simply wait in the one position for the patrol to return; and he was able to resume his patrol duties immediately afterwards for a period of approximately two hours. Despite those reservations, I am unable to be satisfied beyond reasonable doubt that he did not actually experience a severe psychosocial stressor as that term is defined in the Statement of Principles. This means that I cannot be satisfied beyond reasonable doubt that the applicant’s anxiety disorder is not war-caused.
Alcohol Dependence or Abuse
42. The hypothesis advanced by Ms Carter-Nicoll was that this condition developed in response to the presence of service-related psychiatric debility in the applicant. This meets the first of the requirements in the Deledio process and the Statement of Principles for the condition is No 76 of 1998. Factor 5(a) thereof reads:
“suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;”
43. In that Statement of Principles, the term “psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM-IV and this includes anxiety disorder. The evidence of Dr Holm, as noted above, supports the longstanding nature of the applicant’s anxiety disorder and the increase in alcohol consumption during and following the applicant’s eligible service. In his report of 22 May 2002, he referred to the clinical onset of the applicant’s alcohol dependence or abuse as following upon his anxiety disorder. On that evidence, the hypothesis advanced by Ms Carter-Nicolls is reasonable as it does fit, in the sense of being consistent with, the template in the Statement of Principles in accordance with the third step in the Deledio procedure. Turning to the fourth step thereof, I am not satisfied beyond reasonable doubt that the applicant’s alcohol dependence or abuse is not related to service per medium of his anxiety disorder and, therefore, his claim in respect of this condition must succeed.
Decision
44. The Tribunal:
(a)affirms the decision under review insofar as it relates to post traumatic stress disorder and depressive disorder; and
(b)sets aside the decision under review insofar as it relates to anxiety disorder and alcohol dependence or abuse and substitutes the decision that anxiety disorder and alcohol dependence or abuse are war-caused diseases, that pension for any incapacity associated with those diseases is payable to the applicant from and including 1 December 2000 and that the matter of assessment of that incapacity is remitted to the Repatriation Commission.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: S Oliver
Associate
Date of Hearing 23 June 2004
Date of Decision 6 August 2004
Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Sciaccas Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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