JACQUELINE LAYTON and REPATRIATION COMMISSION
[2013] AATA 37
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/3541
Veterans' Appeals Division )
Re: Jacqueline Layton
Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL: Dr P McDermott, RFD, Senior Member
DATE: 6 February 2013
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Insert the word “are” before “available” in paragraph 108.
...................................................................
Senior Member
[2013] AATA 37
Division VETERANS' APPEALS DIVISION File Number
2011/3541
Re
JACQUELINE LAYTON
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
Decision
Tribunal Dr P McDermott, RFD, Senior Member
Date 25 January 2013 Place Brisbane I set aside the decision under review and make a decision in substitution for that decision so set aside. A decision is made that Jacqueline Layton is entitled to a widow’s pension. The date of effect of my decision is 17 August 2009.
........................................................................
Dr P McDermott, RFD, Senior Member
Catchwords
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Operational service – Ischeamic heart disease – Statement of Principles – Posttraumatic stress disorder factor – DSM-IV-TR Diagnostic Criteria – Four step procedure for determining whether death was war caused – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted
Legislation
Veterans' Entitlement Act 1986 (Cth) ss 6A, 7, 8, 13, 14, 119, 120, 196A, 196B
Cases
Benjamin v Repatriation Commission (2001) 70 ALD 622
Border v Repatriation Commission [2010] FCA 264
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission (2009) 258 ALR 204
East v Repatriation Commission (1987) 16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Harris v Repatriation Commission (2000) 62 ALD 174
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Budworth (2001) 16 FCR 200
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Warren (2007) 95 ALD 606Repatriation Commission v Warren (2008) 246 ALR 279
Secondary Materials
Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, Text Revision, American Psychiatric Association
Statement of Principles (Instrument No 89 of 2007) as amended by Instrument 43 of 2009 and Instrument No 96 of 2010
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
Jacqueline Layton (the applicant) was a dependent of the late Reginald Joseph Layton (the veteran) who in World War II served with the Australian Army in New Guinea. The applicant has applied for a war widow’s pension. I have to decide whether the death of the late veteran was related to his service.
background
On 17 November 2009, the applicant made her claim for a war widow’s pension. On 3 February 2010, a delegate of the Repatriation Commission rejected the claim on the ground that the death of the veteran was not related to his service.
The applicant sought a review of this decision from the Veterans’ Review Board (VRB) which, on 5 July 2011, affirmed the decision.
The applicant now seeks review of that decision by this Tribunal.
SERVICE
During World War II the veteran served in the Australian Army. It is not in dispute that he rendered “eligible war service” in the form of operational service from 6 March 1941 until 1 February 1946.[1]
[1] As defined by ss 7 and 6A of the Act.
LEGISLATIVE FRAMEWORK
Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) provides for when the death of a veteran is taken to be war-caused. The provision applies where, relevantly under sub 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Subsection 13(1)(c) of the Act provides, relevantly, that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.
Subsection 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 provides for a dependant to include a “widow”. Section 5E defines a “widow” to be a woman who was a partner of the person immediately before his death. It is not in dispute that the applicant was a dependant of the veteran.
As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying subs 120(1) and 120(3) of the Act.
Subsection 120(1) of the Act provides that where a claim 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.
Subsection 120(3) of the Act also provides that
In applying subsection 120 (1) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury 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.
STATEMENT OF PRINCIPLES
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA). The RMA is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence which set out factors relating to service which must exist in order to establish a causal connection between particular diseases, injuries or death and service.
Section 196B of the Act provides that if the RMA:
…
(2) … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans;
…
[they] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
A Statement of Principles is binding on decision-makers at all levels, including this Tribunal.
The reference in sub 196B(2) of the Act to a particular kind of injury, disease or death being “related to service” is expounded in sub 196B(14). This provides relevantly, in effect, that a factor causing an injury, disease or death is “related to service” rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service;
…
In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This follows from the application of sub 120A(3) of the Act, which provides that:
For the purposes of sub 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.
DEATH OF the VETERAN
I am required to determine the “kind of death” that is applicable to the veteran. The expression “kind of death” refers to the medical cause or causes of death: see Repatriation Commission v Hancock.[2]
[2] [2003] FCA 711 at [8]-[9] per Selway J.
The death certificate records that the veteran died in 1993, the causes of death being:[3]
(a) Myocardial infarction; and
(b) Atherosclerosis.
[3] See Exhibit A, T-document 9, p. 37.
The first cause of death is described as “immediate” and the second cause of death is described as “years”. Because one of the veteran's “cause of death” was certified as being atherosclerosis (which come within the definition of ischaemic heart disease cl 3(b) of Statement of Principles (Instrument No 89 of 2007 as amended by Instrument 43 of 2009 and Instrument No 96 of 2010), it is accepted (and I find) that the veteran’s kind of death was ischaemic heart disease. It has been held that there may be more than one cause of death: see Repatriation Commission v Law[4] and Collins v Repatriation Commission.[5]
[4] (1980) 147 CLR 635.
[5] (2009) 258 ALR 204 at [51].
CONSIDERATION
The claim of the applicant is based upon Statement of Principles (Instrument No 89 of 2007 as amended by Instrument 43 of 2009 and Instrument No 96 of 2010) for Ischaemic Heart Disease. In this case there is no preliminary issue whether the cause of death of the veteran was ischaemic heart disease. The death certificate records that the cause of death was myocardial infarction and atherosclerosis and that the veteran had suffered from the latter condition for some years. My task is different from that considered in some cases where there was a preliminary issue whether there could be reasonable satisfaction that a veteran suffered from a particular disorder before applying the Statement of Principles for that disorder. As I have found that the veteran suffered from ischaemic heart disease, the applicant is entitled to have her claim determined in accordance with the Statement of Principles (Instrument No. 89 of 2007 as amended by Instrument No 43 of 2009 and Instrument No 96 of 2010) for Ischaemic Heart Disease and the Repatriation Commission v Deledio[6] (Deledio) four-step process.[7]
[6] (1998) 83 FCR 82 at 82-83.
[7] Repatriation Commission v Budworth (2001) 16 FCR 200 at [19]; Repatriation Commission v Bawden [2012] FCAFC 176 at [40].
In Deledio, the Full Court of the Federal Court of Australia, at 82-83, provided guidance on the four steps which I must consider:
(i) 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.
(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a Statement of Principles (SoP) determined by the Authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(iii) 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 s196B(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.
(iv) The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Step 1 of Deledio
I must consider all the material before me and determine whether that material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. A hypothesis is a proposition which, although intuitively logical, at this stage requires no substantive truth. It has been said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”: Repatriation Commission v Stares.[8] I am required to decide on whether any hypothesis exists “after consideration of the whole of the material”: Bushell v Repatriation Commission.[9]
[8] (1996) 41 ALD 212 at 217.
[9] (1992) 175 CLR 408.
There is no issue that the material before me raises a hypothesis connecting the death of the veteran with the circumstances of his operational service. There is evidence that during his operational service the veteran killed a Japanese soldier in two separate incidents. As a result of experiencing these incidents the veteran suffered from posttraumatic stress disorder. This disorder is “a clinically significant anxiety spectrum disorder”[10] which contributed to the veteran suffering from ischaemic heart disease, which is a cause of the death of the veteran.
Step 2 of Deledio
[10] SoP Instrument No. 89 of 2007 for Ischaemic Heart Disease, cl 9 (as amended by Instrument No 43 of 2009).
I must ascertain whether there is in force any Statement of Principles issued by the RMA under subs 196B(2) or (11) of the Act.
For the various components of the hypothesis, I have ascertained that the relevant Statement of Principles in force is:
Statement of Principles (Instrument No. 89 of 2007) for Ischaemic Heart Disease as amended by the Amendment Statement of Principles (Instrument No 43 of 2009) and by the Amendment Statement of Principles (Instrument No 96 of 2010) (hereafter referred to as “the SoP”).
Step 3 of Deledio
In assessing whether a raised hypothesis is “reasonable”, I am required to follow the decision of the High Court of Australia in Byrnes v Repatriation Commission,[11] which held, at 569,[12] that a reasonable hypothesis is raised when “... the material points to some fact or facts ('the raised facts') which support the hypothesis”. Furthermore, the High Court said, at 571, that in relation to this step:
The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
[11] (1993) 177 CLR 564.
[12] Citing Mason CJ and Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
Since 1 June 1994, in accordance with sub 196B(8) of the Act, to assist a decision-maker in establishing whether an applicant's hypothesis is reasonable, for the purposes of the Act it must refer to the relevant Statement of Principles issued by the RMA. Therefore, this Tribunal must ascertain if it has material before it which fits the template for the relevant Statement of Principles. I am conscious that it has been held that the material must pose a credible proposition, not too remote or too improbable; it must be:
... more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts even though not proved on the balance of probabilities: East v Repatriation Commission.[13]
[13] (1987) 16 FCR 517 at 532-533.
Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility: Gilbert v Repatriation Commission[14]; Repatriation Commission v Bey[15]. The High Court of Australia held in Bushell v Repatriation Commission[16], at 416, that the sub 120(3) test will reveal a reasonable hypothesis where “... there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with operational service”.
[14] (1989) 86 ALR 713;
[15] (1997) 79 FCR 364.
[16] (1992) 175 CLR 408.
I now turn to examine the material before me that pertains to the hypothesis.
The RMA is of the view that there is sound medical-scientific evidence that indicates that death from ischaemic heart disease can be related to relevant service rendered by veterans (see cl 4 of the SoP).
For a kind of death involving ischaemic heart disease, cl 3(b) of the SoP provides:
Kind of injury, disease or death
3. (a) ...
(b) For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to artherosclerosis, thrombosis or vasospasm of the coronary arteries.
…
I have already mentioned that the death certificate records that the causes of death of the veteran were myocardial infarction and atherosclerosis. I am reasonably satisfied that the veteran’s ischaemic heart disease was a cause of the death.
Clause 5 of the SoP provides, subject to cl 7 which is not material in this application, that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.
Clause 6 of the SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from ischaemic heart disease with the circumstances of a person’s relevant service is:
(v) (iv) having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical onset of ischaemic heart disease; or.
Clause 9 of the SoP provides:
"a clinically significant anxiety spectrum disorder as specified" means one of the following disorders:
(a) anxiety disorder due to a general medical condition;
(b) generalised anxiety disorder;
(c) panic disorder;
(d) phobic anxiety;
(e) posttraumatic stress disorder; or
(f) anxiety disorder not otherwise specified,
that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly) to a psychiatrist, clinical psychologist or general practitioner;
I have to consider whether a reasonable hypothesis has been raised connecting death from ischaemic heart disease with the circumstances of the veteran’s relevant service. The factor that is relied upon by the applicant is factor (v)(iv) which is “having a clinically significant anxiety disorder as specified, at the time of the clinical onset of ischaemic heart disease”. The “clinically significant anxiety disorder as specified” includes posttraumatic stress disorder. The condition of atherosclerosis comes within the definition of “ischaemic heart disease” in clause 3(b) of the Statement of Principles. There is evidence before me that the veteran had arthrosclerosis for some years prior to his death. Dr Carter considers that the applicant had posttraumatic stress disorder since World War II. This evidence is consistent with the veteran having posttraumatic stress disorder at the time of the clinical onset of ischaemic heart disease
Submissions were made as to whether the disorder of the veteran satisfied the definition of posttraumatic stress disorder in cl 3 in the Statement of Principles (Instrument No. 5 of 2008) for Posttraumatic Stress Disorder which is derived from the DSM-IV-TR. In hearing submissions I informed the parties that one issue was whether the veteran had to satisfy that definition or whether the disorder would need to attract a diagnosis under the DSM-IV-TR.
I consider that in determining this application I have to apply the definition of “a clinically significant anxiety spectrum disorder”, as stated in para 34 above, which was inserted into cl 9 of the SoP in 2009. This requires the consideration of whether the veteran had posttraumatic stress disorder that attracted “a diagnosis under DSM-IV-TR” as well as being “sufficient to warrant ongoing management”.[17] The reference in this definition to DSM-IV-TR is defined in cl 9 of the SoP to mean the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision.[18]
[17] See specifically the Amendment Statement of Principles (Instrument No 43 of 2009).
[18] Washington, DC, American Psychiatric Association, 2000.
The definition of “a clinically significant anxiety spectrum disorder” in the SoP does not contain any reference to the definition of posttraumatic stress disorder in the Statement of Principles for Posttraumatic Stress Disorder (Instrument No 5 of 2008) and so I do not have to apply that latter definition.
In determining whether a reasonable hypothesis has been raised I must first consider whether the veteran suffered from posttraumatic stress disorder that attracted “a diagnosis under DSM-IV-TR”. In Repatriation Commission v Warren (2007) 95 ALD 606 Kiefel J, at [25], remarked:
The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion. A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
These remarks were recently cited in Repatriation Commission v Bawden[19] at [44].
[19] [2012] FCAFC 176.
In Repatriation Commission v Warren (2007) 95 ALD 606, Kiefel J, at [13], made reference to that part of the introduction to DSM-IV entitled Use of Clinical Judgment, which states:
DSM-IV is a classification of mental disorders that was developed for use in clinical, educational and research settings. The diagnostic categories, criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.
This introduction was also cited in Repatriation Commission v Warren (2008) 246 ALR 279 at [21].
It is a difficult matter to posthumously diagnose whether the veteran had posttraumatic stress disorder. It seems that in his lifetime the veteran had not been diagnosed with this disorder let alone been treated for the disorder. I am also conscious that the terminology of “posttraumatic stress disorder” was not itself in use during World War II and has only been in use in relatively modern times.
There is a dispute as to whether the veteran had posttraumatic stress disorder. Dr Janis Carter, a psychiatrist who was called by the applicant, has diagnosed the veteran as having suffered from posttraumatic stress disorder. Dr Bradley Ng, a psychiatrist who was called by the respondent, does not consider that the veteran can be diagnosed as having suffered from posttraumatic stress disorder. There is therefore a conflict of specialist medical opinion. However, in undertaking this third Deledio step I am bound by authority not to engage in any fact finding exercise, nor is there any onus of proof involved.[20]
[20] Border v Repatriation Commission [2010] FCA 264 at [30] per Reeves J.
In determining whether there is a reasonable hypothesis I am conscious that the High Court of Australia in Bushell v Repatriation Commission[21]explained, at 413, that sub 120(3) of the Act is:
not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.
[21] (1992) 175 CLR 408.
In order to determine whether a reasonable hypothesis has been raised it is necessary to review the evidence concerning Diagnostic Criteria A, B, C, D, E and F for posttraumatic stress disorder in the DSM-IV-TR.
Diagnostic Criteria A
The applicant, in giving her evidence, made reference to two separate incidents. In one incident the veteran was involved in hand-to-hand combat with a Japanese soldier that he met in a clearing (Incident One). The veteran was involved in another incident with a Japanese soldier on a swinging bridge (Incident Two). Both incidents resulted in the death of a Japanese soldier.
Incident One
The veteran did not tell the applicant about the incident with the Japanese soldier that he met in a clearing. However, the veteran told two of his sons, Allan Layton and Reg Layton, about the incident and both have outlined the incident in their statements.
On 1 May 2011, Allan Layton, the youngest son of the veteran, wrote an email to his eldest brother, Reg Layton, in response to an enquiry from the applicant as to the possible impact that World War II may have had on the state of wellness of his father. He wrote his email before the claim of the applicant was considered by the VRB. In his email he stated that sometime in late 1992 he visited his father in hospital when his father started telling him about an incident that happened to him in the war. His email contains the following remarks:[22]
I remember him telling me how he had been doing reconnaissance (Dad was a commando who apparently had to spend a lot of his time on his own at advanced positions very close to the enemy lines) one day and came into a clearing just as a Japanese soldier entered the same clearing. Dad said that, after a very long time of fighting with the soldier in hand-to-hand combat, he was eventually able to get the upper hand and he killed him.
I will never forget the way that he told the story. He said that he can remember how very quiet it was. All he could hear was his own very heavy breathing and that of the other man. There was no yelling or screaming, no crying for it to end, by either of them, no noise at all really. He talked about how hot and slippery they both were. Nothing fancy as far as martial arts or anything like what we are used to see in the movies, just two men locked in a life or death struggle to the end. Dad said he was just luck and basically just outlasted him.
As I say, I have never forgotten the incident of Dad’s telling me about it. I have often thought about how it must have been for them. Randomly coming upon each other like that and knowing only one was going to survive, and how it must have been for Dad to take the other man’s life with his bare hands, not clinically at a distance with a rifle, but right up close, face to face – a total stranger who just happened to have another uniform on.
[22] Exhibit A, T-document 15, p. 56.
Allan Layton, in giving telephone evidence, verified the contents of his statement. Under cross-examination he was asked about the state of his father’s health when he saw him in 1992. He remarked that the physical state of health of his father had deteriorated greatly and he was assisted with his breathing with oxygen. However, he denied that his state of mental health had deteriorated greatly. He remarked:[23]
In terms of his mental state of health, he just seemed to be like my father, you know, coherent.
[23] Transcript, 25 September 2012, P-29, L40-41.
Under cross-examination, Allan Layton was also asked about whether he had discussed the Japanese soldier incident with his family before May 2011. He was particularly asked about whether he had discussions with his brother Reg and with his mother. He stated that he honestly could not say that he did not have discussions with his brother. He stated that in 2011 he was surprised that his father had told his brother Reg about the Japanese soldier incident and that “Reg had very similar details”.[24] He stated that he did not discuss the incident with his mother who was quite ill for a lot of the last 10 to 12 years of her life.
[24] Transcript, 25 September 2012, P-30, L-24.
Under cross-examination, Allan Layton was asked about that part of his statement where he remarked: “Dad was a commando.” He was asked whether his father had told him that: he replied, “No”.[25] He stated that he did not have many opportunities for father/son conversations with his father as he lived with his mother and not his father. He said that it was his uncle who told him that his father was a commando and that he was surprised to learn that his father was not a commando.[26]
[25] Transcript, 25 September 2012, P-30, L40-46.
[26] Transcript, 25 September 2012, P-31, L13-14.
Reg Layton, in his statement of 2 May 2011, stated that his father only spoke to him about the War on two occasions. His statement contained the following material relating to the second occasion:[27]
The second was just before he died in 1993 I was visiting him at his home in Lowood & we were just sitting in the lounge room when he said I want to tell you something son & he went on to tell me of his experience during the war where he had to defend himself against a Japanese soldier. Dad was a commando & spent most of his time on reconnaissance close to enemy lines. He came upon the Japanese soldier in a clearing & they fought with knives until only one survived, being such a personell (sic) conflict & the fact that this soldier died right in front of him played on him all his life but he apparently only seemed compelled to talk about it as he himself approached death, This probably explains his actions as described to me by my mother. He also related the account with the Japanese soldier to my youngest brother Allan.
[27] Exhibit A, T-document 15, p. 57.
In her report dated 23 May 2011, Dr Carter remarked:[28]
he did have a Criterion (A) Stressor, where he experienced, witnessed and was confronted with events where he could have been killed, and it was either up to him or the Japanese person who was going to die, and his response to that did involve intense fear, helplessness, and horror, and he did explain to his son his ongoing feelings about this event, and his feeling of impotence about it”
In cross-examination Dr Carter stated that she considered the effect of that story on Allan Layton and that she was “deducing those feelings that would have been going on in the father to transmit those feelings to his son”.[29]
[28] Exhibit A, T-document 14, pp. 46-49, esp. p. 47.
[29] Transcript, 25 September 2012, P-72, L39-40.
Dr Ng, in his report dated 3 June 2012, remarked that the history recounted by the applicant suggests some traumatic incidents experienced by the veteran during World War II.[30]
[30] Exhibit J, esp. p. 8.
Incident Two
Whilst the veteran did not tell the applicant about the incident with the Japanese soldier that he met in a clearing, he did tell her about an incident that occurred on a swinging bridge whereby a Japanese soldier ended up in the river. The applicant, in giving evidence remarked:[31]
He told me about throwing a man off the – swinging rope bridge into the river. And he said that he was pretty sure that he killed him because he didn’t come up
The applicant was not questioned about this incident. Dr Carter, in her report of 26 March 2012, certainly treats this as another stressful event from World War II.[32]
[31] Transcript, 25 September 2012, P-39, L36-37.
[32] Exhibit G.
Diagnostic Criteria B
Dr Carter, in her report dated 23 May 2011, addressed the requirements of Diagnostic Criteria B: she remarked:[33]
He was a man who was subject to anxiety attacks, which is explained in the DSM-IV criteria for PSTD, 309.81, (B)(v), where he had physiological reactivity when he was exposed to any external cues particularly that reminded him of the war, and he would get into a state of agitation, he would become sweaty and he would find it difficult to cope.
[33] Exhibit A, T-document 14, pp. 46-49, esp. p. 47.
Diagnostic Criteria B(2) refers to, among other things, the veteran persistently re-experiencing recurrent distressing dreams of the event. In her statement of 3 December 2009, the applicant remarked:[34]
My husband suffered ongoing ‘flash backs’ and reocurring [sic] nightmares as a result of his operational service; which continued until his demise.
The applicant was not questioned about this statement. Dr Carter, in her report of 26 March 2012, remarked:[35]
Jacqueline Layton is quite clear about the fact that her husband suffered from severe nightmares during the time she was with him, where he imagined he was back in a war-time situation and he was defending himself from the enemy or was under attack.
[34] Exhibit A, T-document 10, p. 38-39, esp. p. 38.
[35] Exhibit G, p. 3.
The applicant has outlined some of the nightmares that were experienced by the veteran. In her statement of 1 May 2011,[36] she remarked that she awoke one morning to discover that he pushed a wardrobe across the bedroom door. In another incident, referred to in her statement of 21 November 2011,[37] she was woken when the veteran “punched my bed side lamp to smithereens” as the veteran thought that someone was in the room. She also referred to an incident when she awoke cold because he was wrapped in a quilt standing at the top of the stairs on guard. In her statement dated 21 November 2011,[38] the applicant said that in about 1966 or 1967 she and the veteran were living in a sixth floor unit in Surfers Paradise. During the night the applicant was woken when the veteran ripped the curtains and the curtain brackets off the wall; the veteran stated that he needed a parachute to get out of the unit. In 1989 the veteran and applicant were living in Lowood. The applicant was woken up in the middle of the night by the veteran who trained his rifle on the back door as “they” were outside.[39]
[36] Exhibit A, T-document 15, p. 53.
[37] Exhibit C.
[38] Exhibit C.
[39] The applicant also recounts this event in her statement of 1 May 2011.
Dr Carter, in her report of 23 May 2011,[40] opined that the applicant was violent mainly at night when he was having nightmares about his war trauma.
[40] Exhibit A, T-document 14, pp. 46-49.
There is evidence from other than the applicant that the veteran suffered from nightmares. Elvy Bertini, a former sister-in-law to the veteran, in her statement dated 11 December 1995,[41] recounts how the veteran suffered constant nightmares. She mentioned that the veteran woke in the middle of the night and tried to throw his first wife out of the window.
[41] Exhibit A, T-document 15, pp. 54-55.
Reg Layton, in his statement of 2 May 2011, confirmed that his mother told him that these incidents occurred on more than one occasion during the early part of their marriage. He also remarked:[42]
While newly married she was woken in the middle of the night with my father trying to throw her out of the window, the only thing that prevented this happening was back in those days people slept with mosquito nets over there [sic] beds & as she was wrapped & entangled in the net his attempt failed. Mum said that dad appeared not know where he was & thought that he was still in the jungles of New Guinea & was defending himself against an enemy soldier. Mum said she spoke to him in relation to these incidents & while he was sincerely apologetic they continued for many years.
[42] Exhibit A, T-document 15, p. 57.
Dr Ng, in cross-examination, was asked whether the evidence of Reg Layton “points towards Mr Layton re-experiencing the trauma of the war on an ongoing basis post the war, doesn’t it?” Dr Ng replied: “That would suggest so”.[43] Dr Ng was asked whether the evidence would suggest that the veteran was psychologically disturbed by his experiences during the war: he replied: “That would be one possibility”.[44]
[43] Transcript, 25 September 2012, P-85, L38-39.
[44] Transcript, 25 September 2012, P-29, L41-42.
Dr Carter was asked about her opinion that the veteran had flashbacks to situations in the war. She explained that a flashback is an image of something that happened in the war. She referred to the history of the veteran having to leave the room and go off by himself when things happened on the television. She considered that this would be a flashback because of the emotional feeling and the withdrawal and the emotional action associated with seeing something. Dr Carter was candid in stating that she was making an assumption which was based from histories that she has obtained throughout her clinical life from living veterans which was helped by the opinions and feelings of his wife who was there at the time. Dr Carter was asked whether the applicant used the terminology of “flashbacks”: she replied that she would talk more about “memories”.[45]
[45] Transcript, 25 September 2012, P-70, L31-34.
Diagnostic Criteria B(5) refers to physiological reactivity on exposure to internal and external cues that symbolise or resemble an aspect of the traumatic event. There is evidence that such reactivity can fairly be regarded as persistent. Dr Carter gave evidence that certain things would prompt the veteran to have memories of the war. Dr Carter stated that this was corroborated by the fact that if he saw anything on the television he would have to go away from it because it would cause him to have traumatic memories. Another example of possible physiological reactivity was given by the applicant, who referred to the reaction of the veteran to statements that were made by patients in the same hospital ward as the veteran: those patients “were laughing and joking about the good war years”. The veteran had responded by remarking: “They haven’t got a clue what they’re talking about”.[46]
[46] Transcript, 25 September 2012, P-40, L24-28.
Diagnostic Criteria C
There is evidence of persistent avoidance of stimuli associated with the trauma in terms of Diagnostic Criteria C(1), (2), (5) and (7). In order for a diagnosis to be made it is sufficient if there is the satisfaction of three of those criteria.
Dr Carter, in her report of 26 March 2012, reported that the applicant:[47]
describes why her husband hadn’t sought help during his life, because he saw himself as not being very different from other people who had served in World War II. She gave further evidence to me today of how avoidant he had been and how he didn’t join the RSL or mix with other war veterans, which is part of the symptoms of posttraumatic stress disorder with avoidance behaviour.
She also told me that if something came up on television, such as things about Anzac Day, her husband would become extremely anxious and then he would withdraw himself from the situation and keep on his own until he had settled down. This is typical avoidance behaviour of post traumatic stress disorder.
[47] Exhibit G, p. 2.
There is evidence that the veteran avoided conversations about the traumas which were the incidents with the two Japanese soldier. The veteran did not discuss Incident One with the applicant. Only towards the end of his life did the veteran discuss Incident One with his sons. Reg Layton, in his statement and in his testimony, gave evidence that his father would not discuss his wartime experiences. In his statement he remarked:[48]
I asked him about his experiences during the war but he wouldn’t talk about them.
There was an effort to avoid conversations associated with the trauma (Diagnostic Criterion C(1)).
[48] Exhibit A, T-document 15, p. 57. I note however that this was in regard to the “earlier” time Reg Layton asked about his war experiences. His statement confirms that his father did speak to him about Incident One much later near the end of his life.
There is also evidence of efforts by the veteran to avoid activities that recalled memories of the trauma (Diagnostic Criteria C(2)). There is evidence that the veteran did not attend any of the Anzac Day marches or watch the marches on the television. The applicant, in her statement of 21 November 2011, stated that the veteran:[49]
would not attend any of the marches or watch the march on the TV.
She added that:
The only time that he did see it on TV was just before he died and he became very emotional, quite upset.
[49] Exhibit C
Dr Ng, in his report,[50] stated that the veteran “generally avoided ANZAC Day Parades” but conceded that he should not have used the word “generally”. Dr Ng also stated that it could be concluded that he was avoidant of that activity.
[50] Exhibit J.
Dr Carter, in her report of 23 May 2011,[51] considered that the veteran “was a bit remote from people and didn’t mix well”. The applicant gave evidence that as a couple they did not mix at the races or football. This is a reference to Diagnostic Criterion C(5) which refers to feelings of detachment or estrangement from others. Dr Carter, in her report of 23 May 2011 remarked:
Obviously towards the end of his life he had a sense of foreshadowed future and that this was the genesis of the event with the rifle where she felt worried for her life.
This is a reference to Diagnostic Criterion C(7) which refers to a sense of a foreshadowed future.
[51] Exhibit A, T-document 14, pp. 46-49.
Diagnostic Criteria D
Dr Carter, in her report of 23 May 2011, expressed her professional opinion that the veteran met Diagnostic Criteria D(1),(2),(3) and (4). In order for a diagnosis to be made it is sufficient if there is the satisfaction of two criteria. Dr Carter concluded:[52]
(D) Arousal phenomena – He had severe difficulty with his sleep. He was prone to irritability and episodes of anger. He had difficulty concentrating. He was hypervigilant and on the look-out for safety issues and protective issues and did startle easily.
[52] Exhibit A, T-document 14, pp. 46-49, esp. p. 47.
Dr Carter was questioned on her statement that “[h]e was prone to irritability and bursts of anger”: she replied that she dictated the comment while she was taking the oral history from the applicant.
Dr Carter, in her report of 26 March 2012, reported:[53]
Jacqueline also described the situation of his arousal phenomena, where had difficulty with his sleeping and with nightmares, and would be found walking around the house at night.
[53] Exhibit G, p. 4.
There is evidence that the veteran had difficulty falling or staying asleep as he had nightmares. The applicant remarked that he “suffered ongoing ‘flash backs’ and recurring nightmares”. The difficulty of the veteran with his sleep satisfies Diagnostic Criteria D(1).
There is also evidence of what could be fairly regarded as persistent acts of hypervigilance (Diagnostic Criteria D(4)). There is the evidence that he tried to push his first wife out of the bedroom window. There is the evidence from the applicant, his second wife, that he pushed a wardrobe across the bedroom door, he punched a bed side lamp to “smithereens” as he thought that someone else was in the room and that in one instance she awoke cold because he was wrapped in a quilt standing at the top of the stairs on guard. In 1966 or 1967, the applicant was woken when the veteran ripped the curtains and the curtain brackets off the wall stating that he needed a parachute to get out of the Surfers Paradise apartment building. In 1989 at Lowood, the applicant was woken up in middle of the night by the veteran who trained his rifle on the back door as “they” were outside.
The applicant gave evidence of the reaction of the veteran to statements that were made by patients in the same hospital ward as the veteran: those patients “were laughing and joking about the good war years”. The veteran had then responded: “They haven’t got a clue what they’re talking about”.[54]
[54] Transcript, 25 September 2012, P-40, L24-28.
Diagnostic Criteria E
In my opinion Diagnostic Criteria E is met as the duration of the disturbance indicated by the relevant symptoms set out in Diagnostic Criteria B, C and D was for more than one month.[55] Dr Carter, in her report of 23 May 2011, reported:
the duration of his disturbance seems to have been from the time that he served in World War II, and … the situation was chronic, in that it was certainly present for more than three months.
There is evidence that these symptoms persisted for many years over two marriages of the veteran.
Diagnostic Criteria F
Dr Carter is of the view that the disturbance of the veteran caused significant impairment in social, occupational or other important areas of functioning so as to meet Diagnostic Criteria F. She stated that she came to this conclusion by:[56]
an amalgam of the statements of his wife, and even though he appeared normal, that there were areas in his life where he isolated himself, he didn’t function the way he appeared to function on the outside, and that there were subtle, especially avoidance-type phenomena from which he suffered.
However, Dr Carter was unable to point to anything in her notes that underpins that conclusion.
[56] Transcript, 25 September 2012, P-73, L29-33.
Dr Ng reported that the veteran was “quite a highly functioning man” and gave as a reason for this conclusion that the veteran ran a successful car dealership for a period of time.[57] However, under cross-examination, Dr Ng conceded that “Ms Layton gave a history of the business not doing well”.[58] The veteran and his business partner lost their car dealership that they had for some time. There is no record of why the car dealership was lost. Dr Carter thought that the business was unprofitable. This is confirmed by the applicant who stated that they had to sell their house and move to Lowood. Dr Ng, in his report, stated that after the loss of the car dealership the relationship between the veteran and his business partner was “amicable afterwards”.[59] In cross-examination, Dr Ng was advised that the applicant had said that the veteran and his business partner had never spoken again. Dr Ng remarked that he would not dispute that statement of the applicant. Dr Ng remarked: “Probably amicable would be the wrong term to use”.[60] The applicant was not questioned upon her statement that the veteran did not speak to his former business partner after the sale.
[57] Exhibit J, p. 8.
[58] Transcript, 25 September 2012, P-81, L-29.
[59] Exhibit J, p. 3.
[60] Transcript, 25 September 2012, P-81, L-22.
Dr Ng, in his report, stated: “His interpersonal relationships were good. He appeared to have a good relationship with his three sons from his first marriage”.[61] However, the veteran was divorced from his first wife. There is little material concerning what the reasons were for that divorce. Elvy Bertini, a former sister-in-law to the veteran, in her statement dated 11 December 1995, gave as a reason for the divorce: “Unfortunately my sister Alama and Reg grew very incompatible mostly over her religious beliefs and his continuous work etc etc”.[62]
[61] Exhibit J, p. 8.
[62] Exhibit A, T-document 15, p. 55.
Diagnosis
For the purpose of assessing whether there is a reasonable hypothesis, there is evidence before me that the veteran suffered from posttraumatic stress disorder which resulted from his operational service during World War II. There is material before me which is consistent with the veteran attracting a diagnosis under the DSM-IV-TR by having met the diagnostic criteria for posttraumatic stress disorder for Diagnostic Criteria A to F in the DSM-IV-TR. The diagnosis by Dr Carter of posttraumatic stress disorder under the DSM-IV-TR can be supported by her opinion that the veteran has satisfied those diagnostic criteria.
I respectfully differ from the opinion of the VRB that it had to be reasonably satisfied that a diagnosed condition of posttraumatic stress disorder is before it. At this third Deledio stage I do not have to make an actual finding to my reasonable satisfaction that the veteran did attract a diagnosis of posttraumatic stress disorder. In my opinion it is sufficient that there is material before me that is consistent with the veteran having attracted a diagnosis of posttraumatic stress disorder under DSM-IV-TR. Where I consider that I am required to make a finding to my reasonable satisfaction as to the existence of a diagnosed condition is in my finding that ischaemic heart disease was a cause of the death of the veteran before I consider the application of the SoP for that condition.[63]
[63] See s 120(4) of the Act and Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-5 and Collins v Repatriation Commission (2009) 258 ALR 204 at [19]-[20] per Mansfield and Stone JJ.
The VRB also considered that they had to be reasonably satisfied as to each of Diagnostic Criteria A to F for that condition in the DSM-IV-TR. I respectfully differ from this opinion of the VRB. Even in a case where the full criteria for the disorder are not met, I am conscious that a diagnosis may be made in an appropriate case. The Federal Court of Australia in Repatriation Commission v Warren (2007) 95 ALD 606, at [13] and [27]-[28], and the Full Court of the Federal Court in Repatriation Commission v Warren (2008) 246 ALR 279, at [44], has recognised that a diagnosis can be given to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis, provided that the symptoms that are present are persistent and severe. The Introduction to DSM-IV-TR states that these specific diagnostic criteria “are meant to serve as guidelines to be informed by clinical judgment, and are not meant to be used in a cookbook fashion."
The material before me is consistent with the disorder of the veteran being sufficient to warrant ongoing management. Whilst the SoP gives examples of ongoing management, it is not prescriptive of the regularity of treatment in order to fit the template. Dr Carter, in her reports, expressed the opinion that the veteran warranted treatment; in one of her reports she used the expression “formal treatment”.
The reports of Dr Carter are certainly written on the basis that she considered that the veteran was in need of treatment. In her report dated 23 May 2011, she remarked that:[64]
it wouldn’t have occurred to him that he needed treatment. He obviously knew that he was disturbed from his experiences in the war … but this didn’t lead to a diagnosis being made and formal treatment for posttraumatic stress disorder and a claim being made during his lifetime.
[64] Exhibit A, T-document 14, pp. 46-49, esp. p. 49.
At Stage 3 of Deledio, it is permissible to make proper assumptions.[65] I assume that the use of the expression “formal treatment” by Dr Carter is a reference to some form of ongoing treatment. There was no suggestion put to Dr Carter that the case of the veteran did not warrant any such treatment. In her report of 26 March 2012,[66] she explained why the veteran “hadn’t sought help during his lifetime”. In giving evidence, Dr Carter made remarks that were consistent with her opinion that the veteran required treatment. Dr Carter remarked:[67]
I treat a lot of people with posttraumatic stress disorder, and they are able to work into their sixties. Some of them do retire before they are 65, but many – and some continue on after they are 65. Mr Layton did retire before he was 65, so he would have been able to apply for a pension that would have attracted TPI, but he didn’t apply for one.
Dr Carter was told that the veteran would not see a doctor after he had turned grey after being bitten by a scorpion. Dr Carter explained, when asked for her opinion of the veteran:[68]
Well, veterans often avoid seeing doctors and that’s why they sometimes present when they are older for the treatment of posttraumatic stress disorder. They – they are very avoidant of seeing the medical profession.
[65] Harris v Repatriation Commission (2000) 62 ALD 174 at [37] per Finn J.
[66] Exhibit G, p. 2.
[67] Transcript, 25 September 2012, P-68, L1-5.
[68] Transcript, 25 September 2012, P-68, L14-17.
Even though there is a dispute as to whether the veteran attracted a diagnosis of posttraumatic stress disorder under the DSM-IV-TR, the hypothesis is a reasonable one in that the SoP upholds the hypothesis that the death of the veteran is connected with the circumstances of his particular service. In Harris v Repatriation Commission[69] Finn J remarked, at [37]: “Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that ‘one of the disputed facts happens also to be a component of an SoP’”.
Step 4 of Deledio
[69] (2000) 62 ALD 174.
I am now required to consider, under sub 120(1) of the Act, whether or not, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. After my review of the evidence before me I have decided that I cannot be satisfied beyond a reasonable doubt that the veteran’s death was not war-caused.
I have to consider the incidents with the Japanese soldiers. The respondent has submitted that little weight should be given to what was said to be the “alleged stressors”. The respondent also mentioned that despite the sons having mentioned the incident after the death of the veteran, neither incident was raised by the applicant in the earlier claim form of 20 December 1995 or her current claim form of 17 November 2009. However, the forms do not require the disclosure of any contact with the enemy. The applicant gave evidence that while she signed the forms, the forms had been completed by other persons who assisted her. I also mention that the claim form of 20 December 1995 does raise a claim of “stress of army service”.[70]
[70] Exhibit A, T-document 5, pp. 21-25, esp. 23.
Before the hearing of this application the respondent had filed a report by Writeway Research Service dated 20 December 2011. In that report, Col. P Langford (Rtd) stated that he examined the report of the war diaries and other documents of HQ 11 Bde/HQ Merauke Force for the period July 1944, November-December 1944 and January-April 1945 at the Australian War Memorial. The report mentioned that no records could be located for August-October 1944. The report contains the following conclusion about the incident with the Japanese soldier:[71]
It is of course possible that the incident described by the Veteran occurred during the period of the missing records.
[71] Exhibit H, p. 8.
At the hearing of this application, Col. Langford (Rtd), in giving his evidence, remarked:[72]
for me to say that there are no Headquarters Merauke Force war diaries for August to October ’44 is incorrect, because, in August/September 1944, 20-20 Motor Regiment took over as Headquarters Merauke Force, and their war diaries from July ’44 to February ’45 were examined. And so, therefore, the–the possibility that the contact I think we are going to be talking about occurred in the missing months in the 20 Motor Regiment diaries and no such contact was recorded.
[72] Transcript, 25 September 2012, P-51, L14-21.
Col. Langford (Rtd) stated that from the period of July 1944 to February 1944 there was only one contact on the ground with Japanese troops. In cross-examination, Col. Langford (Rtd) conceded that by this he meant that there was only one contact with Japanese troops which was recorded.
The Writeway report made reference to a contact which occurred when an Australian patrol was ambushed near Japero on 12 or 15 November 1944. Col. Langford (Rtd) remarked:
Only one contact was recorded on 15 November 1994 when an Australian patrol was ambushed on a waterway near Otakwa (near Japero) and five Australians were reported killed. Remarkably there was no further detail of this action such as the names of those killed or taken prisoner and no ‘after action’ or patrol report was located.
The Writeway report also contains the following remarks:[73]
Another report on 14 January 1945 indicated that five Australian POWs were being held at Japero from the 15 November 1944 action. This was later established to be false information planted by the Japanese to lure a rescue force into an ambush and no rescue was attempted.
[73] Exhibit H, p. 8.
Col. Langford (Rtd), under cross-examination, confirmed that it was remarkable that there was no further detail such as the names of those killed or prisoners taken, and no after action patrol or patrol report was located. Col. Langford (Rtd) also remarked:[74]
there would have been a very detailed reporting process in place, and that’s why I find it remarkable that there’s not more information on that contact.
Col. Langford (Rtd) confirmed that it is possible that records are missing. There are certainly no records to indicate the names of the five Australians who were reported killed in November 1944.
[74] Transcript, 25 September 2012, P-57, L35-37.
Col. Langford (Rtd) gave evidence that 20 Motor Regiment returned to Australia in early February 1945. The veteran remained in Merauke until 7 April 1945 when he came under Dutch control. Col. Langford (Rtd) stated that he could not find the formal name of the relevant Dutch organisation and he thought that the Australian War Memorial would not contain any Dutch records. Col. Langford (Rtd) confirmed that it was possible that the contact incident occurred in the period between after when 20 Motor Regiment went home and when the veteran went home. I therefore conclude that it is plausible that a contact incident between the veteran and a Japanese soldier occurred after the departure of 20 Motor Regiment despite the absence of any records to confirm that a contact incident had occurred. I consider that this is a permissible use of sub 119(1)(h) of the Act which requires me to take into account any difficulties attributable to the absence of relevant official records relating to the Dutch administration.
I cannot be satisfied beyond a reasonable doubt that the two incidents between the veteran and the Japanese soldiers did not occur. This is because Col. Langford (Rtd) stated that it was possible that a contact incident could have occurred in the period between when the area was under Dutch control after 20 Motor Regiment went home and when the veteran went home. Col. Langford (Rtd) has also stated that it is possible that some records are missing. For instance, there are no records to indicate the names of the five Australians who were reported killed in November 1944. There is evidence that those on patrol did have contact with enemy soldiers. The Official History records that “Japanese aircraft attacked Merauke fairly frequently and long-range patrols had some clashes with Japanese patrols”.[75]
[75] D. Dexter, Australia in the War of 1939–1945, Volume VI – The New Guinea Offensives (1st edition, 1961), p. 228 (cited in the Writeway report at p. 4 (n. 2).
Both statements of the sons of the veteran refer to their father as being a “commando”. In the Writeway report, Col. Langford (Rtd) remarked:[76]
There is no indication in the Veteran’s Service Record that he was qualified as a commando or ever posted to a commando unit.
Both sons were questioned on their use of the term. Alan Layton remarked that his father did not actually use the term “commando” to him but told him that he spent a lot of time behind enemy lines. Reg Layton explained that his use of the term was his interpretation as his father spent most of his time behind enemy lines. Alan Layton stated that he did not have many opportunities to have father/son type conversations with his father as he did not live with him; he lived with his mother. Alan Layton stated that his uncle, who also served in the war, may have told him that his father was a commando. The statements of the sons were written about 18 years after they had spoken to their father. In my view the use of the term “commando” by the sons does not detract from the authenticity of the incident and seems to be directed to the service of the veteran who had spent a lot of time behind enemy lines. There was no evidence as to whether the veteran worked with a Commando Squadron or whether a Commando Squadron operated in the area.
[76] Exhibit H, p. 4.
In considering whether I should place weight on what was described by the respondent as the “alleged stressors”, it is important to consider whether there were any Japanese soldiers in the area. The Merauke Force Operation Instruction No 25, dated 9 January 1945,[77] reported that a considerable number of Japanese troops occupied several bases in the Arafura Sea, including Kai Islands (5000 troops), Aroe Islands (3000 troops), Tanimbar Islands (3000 troops), Kaimana (3000) and Timoeka[78] (1000 troops). The Instruction also states that the nearest known enemy outpost is at Japero where there was a small force of approximately 20 Japanese as well an unknown number of native soldiers. The Instruction records:
Because of the strategic situation existing at present it is considered unlikely that the enemy will attempt any further penetration SE but the possibility of patrol activity remains.
[77] See Exhibit H, annexure 3.
[78] This locality is generally referred to as “Timika” in the records of the K Australian Field Security Section.
Records of K Australian Field Security Section (from the Museum of Field Intelligence) records that in January 1945 a Lt Lyon reported that the veteran “Is very practical and a handy man on patrol in fwd areas”. These contemporaneous records confirm that the veteran was then engaged in patrolling in forward areas. It is plausible that the veteran may have engaged in contact with the enemy who were also then thought to engage in patrol activity.
On 3 April 1945, Lt Col J A England, Commander, 52 Aust Comd AA Regt sent a minute to 11 Div on the subject of the “Defence of Merauke”. At that time he was concerned that Merauke was vulnerable to attack from the enemy. Lt Col England reported: “52 Aust Comp AA Regt (AIF) could not resist ground attack by a strong raiding force”. He also reported that the air strip was the “main Vulnerable area”. The Commander was concerned that the enemy might attack in some strength as he referred to “an attack by a force above a small raiding party”. The minute of 3 April 1945 (which is admitted into evidence pursuant to my Direction of 15 November 2012) is important contemporaneous evidence that Merauke was vulnerable to attack in the very month that the veteran returned to Australia. It is not plausible that Lt Col J A England would have written his minute unless he was of the considered opinion that a Japanese attack could be mounted. It is also plausible that the veteran would at that time have still been engaged in patrolling in forward areas and may have been in contact with the enemy who were previously presumed to engage in patrol activity.
In having regard to the credibility of the applicant, it is important to mention that the records of K Australian Field Security Section (from the Museum of Field Intelligence) confirm the authenticity of some aspects of what the veteran had told the applicant about his wartime experiences. One aspect concerns the death of J K Kneebone. The applicant had informed the VRB that a friend of the veteran by the name of Kneebone was killed by a grenade. The records of K Australian Field Security Section record that J K Kneebone was a deceased member of the unit. This may indicate that the veteran was also vulnerable to attack as he was in the same unit as J K Kneebone. Another aspect concerns the native guide. In her statement of 20 February 2012,[79] the applicant mentioned that her husband told her that when he went on patrol he “was always accompanied by Umit a fuzzy wuzzy guide”. The records of K Australian Field Security Section contains a 1944 photograph of K Australian Field Security Section with one “Amat”, who is a native.
[79] Exhibit D.
There was a discrepancy in the accounts of the incident with the Japanese soldier that were given by Reg Layton and Allan Layton. Reg Layton stated that the veteran and the Japanese soldier fought with knives whilst Allan Layton recounted that they fought without weapons. I do not consider that this discrepancy detracts from the authenticity of the incident as a person engaged in a patrol would presumably have been issued a knife as standard equipment. In any event the discrepancy may satisfy Diagnostic Criteria C(3) which refers to an inability on the part of the veteran to recall an important aspect of the trauma.
One reason that Dr Ng gave in support of his conclusion that a diagnosis of posttraumatic stress disorder could not be made was because the veteran was never treated for a mental condition. Dr Ng remarked: “More importantly, Mr Layton never sought psychiatric or psychological treatment during his working life”. However, the SoP does not require that the veteran had actually received treatment for posttraumatic stress disorder. There is a plausible explanation why the veteran was never treated for this condition. Dr Carter, in her report dated 26 March 2012, had explained that the veteran “was a very proud man who would not present to the doctor for psychiatric reasons”.[80] The applicant gave evidence of the reluctance of the veteran to seek medical assistance. Another reason that was given by Dr Ng in support of his conclusion that a diagnosis of posttraumatic stress disorder could not be made was he saw an absence of evidence of loss of functioning. However, Dr Carter was not questioned on her observations that people who suffer from posttraumatic stress disorder seem able to continue to work into their sixties.
[80] Exhibit G, p. 2.
There was a difference of methodology between Dr Carter and Dr Ng. Dr Carter was advantaged as she had a number of consultations with the applicant. However, the applicant became distressed when she was interviewed by Dr Ng and so he depended on written statements rather than ones given directly. Dr Carter contends that Dr Ng did not deal adequately with the content of what she put in her two reports as to possible stressors as well as considering the statements of the two sons and the applicant. When Dr Ng was being cross-examined he was asked why he had not included in his report what Reg Layton had been told by the applicant or Ms Bertini’s statement. Dr Ng stated that he had chosen not to include documents where the writer of the document did not have any direct discussion with the veteran. This methodology severely restricts the available evidence upon which to base a diagnosis.
There is considerable evidence of the late veteran's many years of psychological distress. I place some weight on Dr Carter's explanation for him not having sought treatment for a mental condition. I should also mention that Dr Ng who was briefed with the reports of Dr Carter did not dispute any aspects of her reasoning as expressed in her reports. Dr Carter was not questioned on her conclusion that the veteran satisfied the diagnostic criteria for posttraumatic stress disorder or that the veteran needed treatment. I cannot be satisfied beyond a reasonable doubt that the veteran did not attract a diagnosis of posttraumatic stress disorder.
Had the applicant not succeeded, there are certain matters that would, in my opinion, have warranted further investigation. One was to ascertain a search of records concerning the death of J K Kneebone, a friend of the veteran. The records of K Australian Field Security Section contain a notation that may indicate that J K Kneebone died on operational service. Another matter concerns the hypertension of the veteran. At the outset of the hearing I asked the parties whether the hypertension of the veteran was an issue and later provided the parties with information concerning salt tablets that were issued to personnel in New Guinea.[81] Whilst the applicant did not rely on the hypertension of the veteran, I consider that the issue of hypertension warranted further investigation having regard to factor 6(a) of the SoP. This Tribunal is bound to ensure that any possible ground upon which an applicant can succeed is thoroughly examined.
[81] Lawrence, C. and Tiddy, J., (1989), From bully beef to icecream: the diet of the Australian Armed Forces in World War I and World War II.
I express my appreciation to the respondent for obtaining what records of the service of the veteran available.
DECISION
I set aside the decision under review and make a decision in substitution for that decision so set aside. A decision is made that Jacqueline Layton is entitled to a widow’s pension. The date of effect of my decision is 17 August 2009.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of ..........................[Sgd]..............................................
Associate
Dated 25 January 2013
Dates of hearing 25 September 2012; 12 November 2012 Counsel for the Applicant Mr Anthony Harding Solicitors for the Applicant Haney Lawyers Advocate for the Respondent Mr Bruce Williams
0
13
0