Jimieson and Repatriation Commission
[2008] AATA 5
•4 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 5
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/828
VETERANS' APPEALS DIVISION ) Re TERRANCE JIMIESON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member Date4 January 2008
PlaceBrisbane
Decision The Tribunal determines that –
(i) The decision under review is set aside;
(ii) The applicant suffers from alcohol dependence and that this condition originated during the applicant’s Naval service (eligible defence service);
(iii) The applicant suffers from a major depressive disorder as a consequential effect of alcohol abuse and subsequently, alcohol dependence. The condition of major depressive disorder is also attributable to Mr Jimieson’s eligible defence service;
(iv) Post traumatic stress disorder is not related to operational service or eligible defence service.
...............Signed...................
District Registrar
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – whether there is a current diagnosis of alcohol dependence or alcohol abuse – whether post traumatic stress, and/or depressive disorder, and/or alcohol abuse (if diagnosed) are war caused – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth.) ss 9, 120, 120A
Lees v Repatriation Commission (2002) 125 FCR 331 at [16]
Constable v Repatriation Commission [2005] FCA 928
Repatriation Commission v Brady [2007] FCA 1087
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stares (1996) 41 ALD 212 at 217
Bull and Repatriation Commission (2001) FCA 1832East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Hill [2002] FCAFC 192
Howard v Repatriation Commission [1999] FCA 1030
Gilbert and Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
Stoddart and Repatriation Commission (2003) 74 ALD 366
Delahunty and Repatriation Commission (2004) 38 AAR 511
Hillier and Repatriation Commission [2004] AATA 897Gerzina v Repatriation Commission (2003) 79 ALD 400 at 406
White and Repatriation Commission (2004) 39 AAR 67
R v Stephenson [1976] VR 376 at 380
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSW Law Reports 705 at 741
REASONS FOR DECISION
4 January 2008 Dr KS Levy, RFD, Senior Member 1. The veteran, Terrance Jimieson, a former member of the Royal Australian Navy (RAN) applied to the Repatriation Commission for recognition of the conditions of post traumatic stress disorder (PTSD), depressive disorder and alcohol dependence/alcohol abuse.
2. In considering this application, all three conditions were determined by the Repatriation Commission on 24 September 2004 to be not related to his Naval service. On 14 August 2006, the Commission’s decisions were reviewed by the Veterans’ Review Board and affirmed. It also varied the previous decision and determined that there was no diagnosed condition in relation to alcohol dependence or alcohol abuse.
3.Mr Jimieson has now applied to this Tribunal for a review of those decisions.
ISSUES
4.The questions for resolution by the Tribunal are as follows:
(i)Is there a current diagnosis of alcohol dependence or alcohol abuse?
(ii)Whether PTSD, and/or depressive disorder, and/or alcohol dependence or alcohol abuse (if diagnosed) are war caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act).
LEGISLATION
5. In respect of the questions to be determined by the Tribunal, the statutory provisions relevantly provide:
“9 War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
Standard of proof
120
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b) a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
(c) the death of a person is war‑caused or defence‑caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
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;
….
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection”
EVIDENTARY EXHIBITS
6. The following documentary exhibits were submitted and admitted into evidence:
Exhibit 1 – The T documents (under s 37 of the Administrative Appeals Tribunal Act 1975)
Exhibit 2 – A statement of the applicant dated 6 September 2007
Exhibit 3 – Report by Dr Geoffrey Rees, Psychiatrist, dated 17 August 2007
Exhibit 4 – Report by Dr Albert Palazzo, Historian, dated 15 February 2007
Exhibit 5 – Supplementary report by Dr Albert Palazzo, Historian, dated 25 June 2007
Exhibit 6 – Applicant’s Statement of Facts and Contentions
Exhibit 7 – Writeway Report dated 16 April 2007
Exhibit 8 – Report by Professor Ivor Jones dated 5 September 2007
ORAL EVIDENCE
Introduction
7. Mr Jimieson enlisted in the RAN on 3 May 1968 and was discharged on 9 May 1974. He is currently 56 years of age. During that period of service, he also undertook operational service as recognised by the Act. These are:
(i)Operational service in Vietnam waters from 3 to 8 April 1971. This service was on board HMAS Duchess. He was posted during that period as a Quartermaster Gunner.
(ii)Operational service in Vietnam waters from 17 May 1971 to 1 June 1971. During that period of service he was also on board HMAS Duchess, and was also posted as a Quartermaster Gunner.
(iii)He also had eligible defence service as a member of the Defence Force as defined in the Act from 7 December 1972 until his discharge date, 9 May 1974.
Incidents
8. The two specific incidents of service which Mr Jimieson contends are “stressors” and which form the basis of his claims are as follows:
(i)The Star Shell Incident. The theory of the case involving this incident was that whilst on board HMAS Duchess which undertook an exercise with a United States Warship in South Vietnamese waters, that a star shell (or star shells) fired from the United States ship was on a bearing which was too low and that the ship was in danger of being hit.
(ii)A Hand Grenade Incident. This part of the theory of the case is that Mr Jimieson and another seaman were in one of the ship’s magazines and priming hand grenades (that is, slightly straightening the safety pins for subsequent use). The purpose of priming the grenades was for grenades to be thrown over the side of the ship to deter enemy divers. Mr Jimieson stated that the ship moved suddenly and the other seaman with whom he was in the magazine, dropped a grenade and the safety pin was dislodged, activating the grenade. The grenade did not explode due to a faulty primer.
(iii)The applicant submits that the star shell incident occurred during his first trip to South Vietnam and the grenade incident occurred during the second trip to South Vietnam.
Mr Jimieson
9. Mr Jimieson described the incidents, outlined above. In relation to the first incident, he told the Tribunal that these exercises were mostly conducted at night. He realised that there must have been an error by the United States ship when he saw spurts of water near the ship. He could not recall having a form of debrief about it on board the ship although he may have been told something of the incident by senior officers. In relation to the second incident, priming grenades, he said he had done a course on grenades but was assisting another sailor in the magazine as he had been asked for assistance. When the pin fell out of the grenade (which itself had been dropped), the other sailor immediately took it and threw it over the side. He said the sailor would have had to climb up stairs through two access hatches and then throw it over the side of the ship. He stated in evidence that he knew that priming grenades in the magazine was wrong and against the Naval standing orders.
10. In cross-examination it was put to the applicant that the report of proceedings of HMAS Duchess for the period concerned showed that the only star shell firing exercise occurred on 18 and 19 May 1971. At that time, the ship was not in the company of United States ships, but with HMAS Parramatta and the New Zealand ship Otago (Exhibit 1, Folios 49 and 51). That report also noted a star shell firing occurred on 14 June (Folio 52), when the HMAS Duchess was handing over some responsibilities to HMAS Derwent.
Dr Albert Palazzo
11. Dr Palazzo presented to the Tribunal as an expert witness for the Applicant. He has a PhD in History from Ohio State University.
12. In describing grenades, he said that the M26 grenade was in wide-spread use in South Vietnam. He indicated he was not familiar with the M36 grenade or how it was issued. Dr Palazzo was referred to the Writeway Research report but did not have a clear recollection of some of the matters upon which he was cross-examined.
Commander Fitzgerald (Retired)
13. Colin Walter Fitzgerald, a Commander (Retired), RAN, provided information to Commodore AHR Brecht (Retired), the author of the Writeway Research Service Pty Ltd report dated 2 April 2007 (Exhibit 7). He was the torpedo and anti-submarine officer on HMAS Duchess during the period covered by the present claims. He stated in evidence that he did not recall grenades being used on board HMAS Duchess, although he could not rule out the possibility. He was responsible for munitions on the ship and stated that grenades were often used for signalling ships. In referring to Attachment 2 to the Writeway Report he said that priming of grenades in the magazine of a ship would be in direct contravention of Naval instructions.
14. He also stated in evidence that, in general, ships could not enter any harbour with primed grenades and scare charges. However, in Vung Tau, priming of scare charges did occur when in Vung Tau harbour, but never when they were along side a wharf. In Vung Tau harbour, he said the scare charges were primed while in the harbour because of enemy divers.
15. In relation to grenades, Mr Fitzgerald said that the RAN used M36 grenades. He was not familiar with M26 grenades. He said the M26 was an Army grenade. In his six years experience, he had never heard of a grenade malfunctioning. His evidence was that he could not imagine that grenades would have been primed in a magazine, because it was such a dangerous activity.
Dr Rees
16. Dr Geoffrey Rees is a psychiatrist and the applicant’s treating doctor. In a report of 2 April 2005, he diagnosed Mr Jimieson with PTSD, major depression and a psycho-active substance abuse disorder. In that report, he referred to the star shell incident, as reported to him by Mr Jimieson, as being the genesis of the applicant’s psychiatric conditions (Folios 23 to 40). In his subsequent report of 13 June 2006, he attributes the grenade incident as perhaps being responsible for development of PTSD. In his report dated 10 September 2007, in reporting on the applicant’s alcohol dependence he attributed the aetiology of that condition to the incidents which occurred on HMAS Duchess.
17. In oral evidence, he discussed the criteria under DSM-IV for PTSD. In particular, Criterion A deals with the nature of the traumatic experience. Of the two events submitted by the applicant, Dr Rees thought only the star shell incident could satisfy Criterion A. In relation to Criterion B, this was evidenced typically by nightmares. These are sometimes precipitated by the disturbing memory of an event such as the presence of helicopter. These did not apply to Mr Jimieson. However, flashbacks can provide a strong reminder of previous traumatic incidents. He said the PTSD probably commenced in the late 1980s.
18. In respect of clinical onset, he said it was difficult to estimate as he reported drinking after his discharge from the Navy in 1974 when he had greater access to alcohol. It was difficult to estimate even in 1990. Dr Rees said that alcohol dependence or alcohol abuse is difficult to differentiate and is really more of a “legal nicety”, however, he said that the alcohol abuse existed in 1973 and turned into alcohol dependence later. He regarded these two conditions as “Siamese twins”. He suggested the social problems for the applicant post-dated his discharge.
19. He therefore put clinical onset of alcohol abuse as 1990 and said that the condition of depression pre-dated alcohol abuse. He thought depression occurred at the earliest in 1980 or 1981. In relation to PTSD, however, he thought the applicant had delayed onset of PTSD. He said often people while in the military forces, tend to share their stories with their mates. However, once they leave the structure of the armed forces, decompensation is quite frequent.
20. Where people in the military forces have been involved in warfare involving children, then when the veteran becomes a grandparent, they can be affected by PTSD, this is particularly so when it brings back memories of children being involved in ambushes etc. Dr Rees informed the Tribunal that Mr Jimieson had a son who went to East Timor in the recent past.
21. In terms of the relationship between PTSD and depression, he said that PTSD would be of greatest priority, although major depression needed to be treated before you can successfully treat PTSD. In relation to which one occurred first, he thought the major depression occurred first.
Professor Ivor Jones
22. Professor Jones provided a report dated 6 September 2007. He interviewed the applicant for an hour and also had access to Dr Rees’ reports. In cross-examination, Professor Jones said that the applicant told him initially he did not like going to sea and became sea sick. There may have been some social issues in his early career, but by 1971, Mr Jimieson was drinking heavily. In discussing a diagnosis, he said alcohol was excessive for a good part of Mr Jimieson’s career. In relation to whether people self-medicate when they are depressed, Professor Jones said some people do, but it is not an inevitable link in this case. He thought it was more likely that the depression was influenced by heavy drinking. In relation to the criteria in DSM-IV, Professor Jones said in relation to Criterion A, the applicant seems to have come from a happy family but worked in a rigid and fixed environment. When he came out of the Navy, Professor Jones thought that Mr Jimieson was a bit unstable because of personality factors rather than PTSD. In that context, he said that Mr Jimieson had signed up in the RAN for nine years but was discharged after six years. In relation to Criterion A, he could not make a judgement about this criterion with any certainty. He did not think the star shell incident was such a startling incident and therefore he could not be certain whether Mr Jimieson satisfied that criterion or not.
23. In relation to Criterion B, he said the applicant did not satisfy this criterion. He did describe dreams, but that is common with depression and alcoholism. However, the thoughts were not intrusive or related to Criterion A. Professor Jones thought the applicant’s dreams were more due to self doubts and depression than to the incidents described.
24. In relation to Criterion C, he referred to having seen Dr Rees’ report about PTSD in 1989.
Summary of medical diagnoses
25. Dr Rees had diagnosed the applicant as having PTSD, major depression and alcohol dependence. He has attributed PTSD to either the star shell incident or the grenade incident. In his latest report, he attributes alcohol dependence to these incidents also.
26. In relation to Professor Jones, he does not diagnose PTSD but says that he cannot be certain about at least Criterion A of the DSM-IV criteria. In relation to Criterion B, he thought that the intrusive dreams were more attributable to the applicant’s self doubts. Overall, he suggested that the applicant suffers from alcohol abuse and that the causes were social rather than due to the incidents claimed. He referred to Mr Jimieson’s early discharge from the RAN in that context. He also suggested that alcohol abuse pre-dated the depressive disorder and was probably responsible for the depressive symptoms. Clinical onset of depression he thought was more likely to have occurred in the 1980s.
CONSIDERATION
27. In determining the questions put to the Tribunal, I have considered all of the evidence presented, both documentary evidence and the oral evidence. I have also considered the relevant statutory and case law.
Preliminary questions
28. There are a number of preliminary issues which must be examined before looking at the statutory provisions as to pension entitlement. These preliminary matters are:
(i)Was Mr Jimieson a veteran?
(ii)Is the “kind of injury or disease” which has been claimed by Mr Jimieson, described by a Statement of Principle (SoP) which has been issued?
29. In relation to both of the above questions, these are answered in favour of Mr Jimieson. His operational service has not been challenged. He is therefore a veteran who can make an application such as the ones which are before the Tribunal for decision. Likewise, there are SoPs which have been issued in relation to the conditions claimed. The relevant SoPs are:
(i)For PTSD – Instrument No 3 of 1999 (amended by Instrument No 54 of 1999)
(ii)Alcohol Dependence/Alcohol Abuse – Instrument No 76 of 1998
(iii)Depressive Disorder – Instrument No 17 of 2007. It is noted that the applicant has accrued rights under the former Instrument No 15 of 1998 also.
Diagnosis
30. Dr Rees has diagnosed the applicant as having the three conditions which are the basis of his claims. Professor Jones provides diagnosis of depressive disorder and alcohol abuse only and did not diagnose PTSD on the basis that he could not be certain that the applicant satisfied the relevant criteria.
31. The Tribunal is satisfied there is some evidence upon which one could reasonably regard Mr Jimieson as having PTSD given the hypothesis which he has raised. On that basis, I think he is entitled to the recognition of the diagnoses of PTSD and major depressive disorder. In accordance with the evidence of the length of drinking and the developmental sequence of alcohol abuse followed by alcohol dependence (as described by Dr Rees), there is a logical basis for concluding that Mr Jimieson has alcohol dependence.
CLINICAL ONSET
32. “Clinical onset” is a critical aspect of the evidence. There must be a relatively contemporaneous existence of the applicant’s condition or disease with some incident in his military service, or at least within any time period specified in a SoP. Where there is no time period specified, as in the case of PTSD, then some evidence must demonstrate a causal link between the condition and an applicant’s military service (Lees v Repatriation Commission (2002) 125 FCR 331 at [16]).
33. In the present case, Dr Rees has diagnosed PTSD, alcohol dependence and a major depressive disorder and the Tribunal has accepted those diagnoses. Dr Rees also opines that all three conditions have a relationship with the incidents claimed to have occurred on operational service. He attributes PTSD to the incidents raised and that that condition was manifest from the late 1980s. He says the condition had a delayed onset and that is consistent with the pattern of other veterans. He also suggests that alcohol dependence is difficult to estimate in 1973 or indeed 1990 but notes that his alcohol consumption had increased by 1973 and that by that time he would have satisfied the diagnosis of alcohol abuse. He concluded that alcohol dependence resulted subsequently. That is consistent with the decision of Constable v Repatriation Commission [2005] FCA 928 and Repatriation Commission v Brady [2007] FCA 1087. He also suggested a depressive condition is recorded at the earliest in 1980/1981 and that it probably pre-dates alcohol dependence.
34. If PTSD was the only condition, Dr Rees’ view would be convincing. But he acknowledges some heavy drinking throughout the early 1970s, particularly after the incidents on HMAS Duchess and notes the applicant would be “dry” at sea but once in port, “he would become intoxicated to the point of oblivion”. As Dr Rees also acknowledges, it is difficult to estimate consumption in 1973 ie two years after the incidents, but by the time of discharge in 1974, he was drinking within his means, but this was in excess of three times the safe drinking levels recommended by NH&MRC (Dr Rees’ report, dated 17 August 2007). Dr Rees also noted in oral evidence that by this time, he had more continual access to alcohol. In addition, he noted that the applicant’s social problems post-dated his discharge. He did not deal with the issue of Mr Jimieson’s early discharge asserted by Professor Jones as being due to personality factors.
35. Professor Jones on the other hand was uncertain about PTSD and declined to make such a diagnosis. However, he describes clinical onset for Mr Jimieson of the other two conditions as being related to difficulties in personality and that these were the cause of his early discharge from the Navy, three years earlier than his due date for discharge. He opines that the personality factors are responsible for alcohol abuse and that alcohol abuse pre-dates the major depressive disorder. As mentioned above, Dr Rees does not deal with the issue of early discharge.
36. While acknowledging that the three conditions claimed are legitimate diagnoses for Mr Jimieson, I find Professor Jones’ expert opinion more convincing that that of Dr Rees. I accept Professor Jones’ explanation of the personality factors as triggering early discharge and that the consequential effects have resulted in a chronology of alcohol abuse then alcohol dependence and subsequently a major depressive disorder. PTSD has emerged subsequently as a delayed onset type, as described by Dr Rees.
Are the conditions “war caused” in accordance with s 9 of the Act?
37. In considering Mr Jimieson’s claims, the Standards of Proof are set out in s 120(1) (a reasonable hypothesis standard) and s 120(3) reasonable satisfaction standard. The standard in s 120(1) applies to determining the causality of the conditions claimed. All other matters are subject to the standard in s 120(3).
38. In determining the efficacy of the hypotheses raised, the determination must be made “after consideration of all of the material”. A reasonable hypothesis can be said to exist where “…. material points to some fact or facts (the raised facts) with put the hypothesis”. (Bushell v Repatriation Commission (1992) 175 CLR 408) (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569).
39. The analytical process to determine whether the claims are “war caused”, the ‘Deledio steps’ must be followed. These are:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. (as modified in Bull v Repatriation Commission (2001) 66 ALD 271)
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 s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” Repatriation Commission v Deledio (1998) 83 FCR 82.
40. In relation to Step 1 of Deledio there must be some material which can raise a hypothesis which could potentially connect the applicant’s conditions of PTSD, depressive disorder and alcohol dependence/alcohol abuse with the incidents of his RAN service. To raise a hypothesis means that there must be a proposition, which on the face of it, would appear to have some likely validity without requiring any proof of the assertions made. It is the commencement of the analytical process which is said to be “… no more than a supposition of conjectural explanation of an ultimate fact” (Repatriation Commission v Stares (1996) 41 ALD 212 at 217).
41. Based on the incidents submitted, they are not inconsistent with a potential for psychological conditions such as those claimed. It is therefore accepted that Step 1 is satisfied.
42. Step 2 of Deledio requires the identification of SoP(s) which have been issued by the Repatriation Medical Authority (RMA). As shown above, SoPs have been issued in respect of each of the conditions claimed. Step 2 is therefore satisfied.
43. Step 3 of Deledio must determine whether any hypothesis raised in Step 1 is a “reasonable hypothesis”. It is the evaluation of the story of the applicant and a determination must be made as to whether it fits within the template established by the relevant SoPs (Bull and Repatriation Commission (2001) FCA 1832). It must be consistent with known facts and must not be too tenuous or remote or fanciful. (East v Repatriation Commission (1987) 16 FCR 517).
44. The assessment to be made at Step 3 was established by the High Court of Australia in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 as follows:
“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. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
45. The determination for the purposes of Step 3, in practical terms, starts with an assumption that the applicant suffers from the conditions as defined in the relevant SoP. The real question is then whether the material raises or “points to”, “experiencing a stressor” as defined in the SoP, during the period of operational service claimed by the applicant (Repatriation Commission v Hill [2002] FCAFC 192 of para 67). In other words, the Tribunal must make an assessment of Mr Jimieson’s scenario as put to the Tribunal and to determine whether it fits within the relevant SoP templates. There are no findings of fact made during this stage of the assessment. If Mr Jimieson’s story does not fit within the template, then his hypothesis will not be reasonable. The hypothesis 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 (1987) 16 FCR 517 at 532 to 533).
46. To determine the efficacy of the hypotheses, Step 3 requires an assessment of the claims against the relevant parts of the SoPs mentioned above. These are set out below.
(i)PTSD – Instrument No 3 of 1999 and Instrument No 54 of 1999
“Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting post traumatic
stress disorder or death from post traumatic stress disorder with
the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or (Instrument No 3 of 1999)
….
Other definitions
8.‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence; …” (Instrument No 54 of 1999)
(ii)Alcohol dependence/Alcohol abuse – Instrument No 76 of 1999
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
….
Other definitions
8.For the purposes of this Statement of Principles:
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
(iii)Depressive Disorder – Instrument No 17 of 2007 (or No 58 of 1998)
No 17 of 2007
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service is:
….
(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or
….
(g)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; or
Other definitions
9. For the purposes of this Statement of Principles:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
No 58 of 1998
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
….
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
Other definitions
8. For the purposes of this Statement of Principles:
‘severe psychosocial stressor’ means 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
47. What evidence must there be to give effect to the principle outlined earlier, that the hypothesis must fit within the template of the relevant SoP or that it must be not too tenuous, remote or fanciful? Firstly, any hypothesis must contain the same elements as those in a relevant factor of an SoP (Howard v Repatriation Commission [1999] FCA 1030). In a pragmatic sense, the evidence must be sufficiently definitive to “point to” the hypothesis and not just be “left open” as a possibility that it is so linked (Gilbert and Repatriation Commission (1989) 86 ALR 713; Repatriation Commission v Bey (1997) 79 FCR 364). The connection will be demonstrated where “….there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service” (Bushell v Repatriation Commission (1992) 175 CLR 408).
48. In relation to PTSD, the incidents described must satisfy the definition of “experiencing a severe stressor”. The applicant submitted that Factor 5(a) of Instrument No 3 of 1999 is relevant to the facts ie: “(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;…”. The definition of “experiencing a severe stressor” was amended by Instrument No 54 of 1999 to require the person to have “experienced, witnessed or was confronted with actual or threat of death or serious injury etc…”.Events that qualify as stressors are shown in paragraph 47 above.
49. There are therefore two essential aspects which must be shown to satisfy this SoP in relation to whether the incidents proffered by the applicant satisfy the definition of a “severe stressor”. There is no requirement that there be an actual threat when judged objectively. That objective assessment must be made from the perspective of a reasonable person in the position of the applicant. In making that assessment, Mansfield J said “…..it contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause.” (Stoddart and Repatriation Commission (2003) 74 ALD 366).
50. The assessment is also informed by the judgement of Tamberlin J in Delahunty and Repatriation Commission (2004) 38 AAR 511 and DP Jarvis in Hillier and Repatriation Commission [2004] AATA 897. In those cases, it was said that objective assessment must be made in relation to a member of the Armed Forces who is not idiosyncratic or unduly timorous or sensitive. It must also take account of the age and experience of the person including experience in combat or stressful situations.
51. In assessing Incident 1, the star shell round which landed close to the ship, I take account that the applicant was 20 years of age and had not had combat experience or any stressful experience on exercise. Based on the incident submitted, the hypothesis that that activity could be a severe stressor is satisfied. Likewise, in relation to Incident 2, if a live grenade is dropped in a magazine full of munitions and in close quarters where in a very short period of time, a person anticipates his life being threatened, then that also could be a severe stressor as there could be a “threat of death or serious injury or a threat to the person’s, or another person’s physical integrity” (see definition above). “Physical integrity” relates to a person’s physical entirety not being significantly affected or a degree of normalcy in life not being diminished. That assessment is made on the basis of it being assessable to some degree (Stoddart (supra)) and that the applicant was not particularly idiosyncratic or sensitive given his age and experience (Delahunty (supra)).
52. On that basis, Step 3 would be satisfied in respect of PTSD. In relation to alcohol abuse or alcohol dependence it was submitted that Factors 5(a) and 5(b) of Instrument No 76 of 1998 are relevant. These envisage the applicant suffering a psychiatric disorder at the time of clinical onset of alcohol abuse or experiencing a severe stressor within two years immediately before clinical onset of alcohol abuse or alcohol dependence.
53. The assessment made of experiencing a severe stressor under this SoP is essentially the same as that discussed above for PTSD. The Tribunal must assess the actual risk or threat of death or serious injury. The considerations outlined earlier are relevant here also (Stoddart and Repatriation Commission (supra)). The definition under this SoP requires that the incident regarded as a severe stressor “might evoke intense fear, helplessness or horror”. This implies very intense emotion, particularly of pain or anticipated danger. Shock, fear and repugnance are also characteristics of the emotions involved (Gerzina v Repatriation Commission (2003) 79 ALD 400 at 406).
54. Applying the interpretation of those terms to the incidents included in the hypothesis, would seem to satisfy the requirements that both the star shell incident and the grenade incident would be severe stressors. As formulated in the hypotheses, there is nothing described in the incidents which is contrary to known scientific facts, or is fanciful or untenable (Byrnes (supra)).
55. In relation to clinical onset, this condition must be evident within two years of the incident. As these occurred in May or June of 1971, the conditions should have been apparent by June 1973. Dr Rees opined that they were attributable to the star shell incident essentially but he seems to attribute the increase in alcohol to both incidents Mr Jimieson witnessed while on operational service. Professor Jones concluded that the onset of alcoholism, as described to him, was due to social factors and not to the incidents described. However, he did conclude that the onset of Mr Jimieson’s alcoholism did originate during the naval service (although he did not conclude that it occurred within the two year period following operational service). It therefore could have occurred within the 12 month period after operational service and while Mr Jimieson was on eligible defence service and not operational service.
56. In light of the above however, he should be entitled to the beneficial interpretation of the expert evidence and I conclude that he has satisfied the requirements of Step 3 in respect of this condition.
Depressive Disorder
57. The applicant’s hypothesis is that Factors 6(b), 6(c) and 6(g) of Instrument No 17 of 2007 are relevant. These are: experiencing a Category 1A stressor within the five years before the clinical onset of depressive disorder (Factor 6(b)); or experiencing a Category 1B stressor within the five years before the clinical onset of depressive disorder (Factor 6(c)); or having a clinically significant psychiatric condition within the two years before the clinical onset of the depressive disorder (Factor 6(g)). The definitions of Category 1A and 1B stressors are contained in paragraph 9 of the SoP, and are reproduced at paragraph 46 above.
58. In the event that the applicant is unsuccessful on the basis of that SoP, he has a residual right to consideration under Instrument No 58 of 1998. Under that SoP, factors 5(b) and 5(c) and the related definition in paragraph 8 are relevant. These are reproduced in paragraph 46 above.
59. Under Instrument No 17 of 2007 and accepting without any fact-finding, the incidents included in the hypothesis, both incidents can be seen to satisfy sub paragraph (a) of a Category 1A stressor. That is, both incidents could be regarded as “experiencing a life threatening event”.
60. Under Instrument No 58 of 1998, both incidents might be regarded as “a severe psychosocial stressor or stressors” (paragraph 5(b) of that SoP). This is assessed also with reference to subjective and objective aspects but broadly speaking, experiencing such a stressor means that the incident “…. evokes feelings of substantial distress in an individual eg being shot at….” (White and Repatriation Commission (2004) 39 AAR 67).
61. Again, while there may be some divergence of opinion in assessing these, an assessment of both Incidents 1 and 2 against those definitions would appear to satisfy the requirements that that condition also would be satisfied for at least Incident 1 and probably Incident 2.
62. On the basis of all of the above, Step 3 is satisfied in respect of each of the three conditions diagnosed. None of these can be said to be contrary to known scientific facts, or obviously fanciful, or untenable (Byrnes case (supra)).
Step 4 and Findings of Fact
63. In relation to Step 4, this stage requires an assessment of facts against the hypotheses in terms of Byrnes v Repatriation Commission (supra). Contrary facts have been submitted in relation to each incident. In relation to Incident 1 (star shell incident), the report of proceedings (Folios 49 to 52), show that there were star shell exercise firings on two occasions in the period referred to by the applicant but these did not involve United States Navy war ships. It is understandable that the dates mentioned by Mr Jimieson might not be accurate after 35 years, however, his evidence of firing exercises with American war ships were quite graphic. It is also supported in a statement by Mr Tremenheere dated 18 August 2004 (although that statement of support does not make reference to dates involved with American war ships). The record shows that the only exercises with American war ships occurred on two occasions – one, on passage between Taiwan and Subic Bay between 29 – 31 May 1971 (Folio 53); and secondly, on 12 June 1971 in Guam (Folio 52). On neither of those two occasions were star shell firings experienced. It appears that between 29 – 30 May 1971, HMAS Duchess and United States war ships participated in a firing exercise which involved simulated air attacks, but the HMAS Duchess official report of its journey refers to a lack of realism and no night firing was reported. Equally, no reference to star shell exercise is reported (Folio 53). That report is also consistent with Annex B to HMAS Duchess letter dated 3 June 1971 (Folio 51).
64. The only star shell firing exercise reported of any similarity was on 19 – 20 May 1971 and this was a Naval gunfire support firing exercise (NGSFX) with the Royal Navy via HM S/M Orpheus. There is reference to poor fire control drill and a night NGSFX which was abandoned “after the first star shell run due to the heavy rain which made spotting impossible” (Folio 49).
65. The only other reference to star shell firing exercises was on 14 June, but this was with HMAS Derwent. No United States presence was reported and in any event, that latter exercise would not appear to be on operational service for Mr Jimieson.
66. In relation to the conflicting evidence of the star shell exercise, there is a conflict in the evidence of Mr Jimieson in relation to the dates of the star shell firing exercises. He concedes however, that it is possible he is confused the occasion on which the star shell firing incident occurred with some other period in which they were in company of United States ships. That is clearly understandable and on that basis alone it is not fatal to concluding the claims in his favour. That seems to be somewhat at odds with the statement by Mr Tremenheere (Folio 58) where he recalls conversations in the Mess deck about how Americans had used live ordinance instead of star shell. He refers to “black humour” and that the Americans “were going to pay us back about the ‘Evans’ incident”. This evidence is however not supported by any official records of exercises in which HMAS Duchess was engaged with the Americans. Mr Jimieson postulates that there may have been a report made separately which was of some confidentiality and might not have been made available. If that was the case, it must be said that there is no evidence provided by the applicant and nor did any cross-examination of any witness pursue that line of questioning. Equally, there was no evidence made available to the Tribunal that any enquiries in that regard may have been made (with or without success).
67. A number of other submissions were made by the parties which were said to support the applicant’s case. In the first instance, Mr Jarro submitted that the evidence of Dr Palazzo where he was unable to find any evidence of a reported star shell exercise, should be regarded in terms of the maxim “the absence of evidence is not evidence of absence”. While being cognisant of that, s 119 of the Act provides that the Tribunal is not bound by the rules of evidence, but it “shall act according to substantial justice and the substantial justice and the substantial merits of the case…” (s 119(1)(g)). This allows the Tribunal considerable flexibility but it must have regard to the evidence and the merits of the case as reasonably presented to it. It does not permit the Tribunal to imply evidence where there is no basis or likelihood that other evidence may exist. The fact that neither party presented any evidence that there may have been confidential or restricted reports which might have been filed elsewhere has not been substantiated.
68. In relation to Incident 2, the grenade incident involving the dislodgement of the grenade pin with attribution of its failure to explode to a malfunction, supporting evidence for this was provided by American historian Dr Albert Palazzo. However, contrary evidence was given by the Munitions Officer posted to HMAS Duchess for the period concerned. This Officer, Mr Fitzgerald, gave evidence that M26 grenades reported by Dr Palazzo were an Army grenade and were never used by the RAN. He gave evidence that only an M36 grenade was used and that any difficulties experienced by the Army in the late 1960s were not relevant to the Navy in the early 1970s. He also emphasised that the grenade referred to was different. In addition, he gave evidence that it was contrary to regulations to prime grenades in the magazine and as the Munitions Officer, he said that, while it was not beyond the bounds of possibility that this could have occurred, that it was most unlikely because of the safety issues involved.
69. In respect of the conflicting evidence, in relation to the grenade incident, the expertise of Mr Fitzgerald seems to me to be much more authoritative and detailed, whereas the evidence of Dr Palazzo was less convincing. I therefore prefer the evidence of Mr Fitzgerald in that respect. Specifically, in relation to Incident 2, the evidence must be sufficiently relevant (R v Stephenson [1976] VR 376 at 380). I did not find Dr Palazzo’s evidence in some cases sufficiently relevant. In addition, for expert evidence to be admitted, the expert must demonstrate the evidence which supports his or her expert conclusion. (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSW Law Reports 705 at 741 per Heydon J). In comparing the evidence of Dr Palazzo and Mr Fitzgerald, I am satisfied that the evidence of Mr Fitzgerald has greater weight and should be preferred to that of Dr Palazzo.
70. Likewise a submission that whether or not the type of grenade identified was correct, that “considerable handling and manipulation of the grenade is required in order to prepare it for firing”. This submission does not inform the Tribunal about issues before it, one way or the other. I accept the submission that the detonation of a grenade in a confined space where the veteran may have primed grenades would have been highly injurious. However, the weight of evidence of that incident is seriously undermined given the evidence of the Munitions Officer, Mr Fitzgerald, who served on HMAS Duchess during that time.
71. The ultimate decision about whether the reasonable hypothesis should be accepted or rejected at Step 4, depends only on whether the Tribunal can be satisfied “….beyond reasonable doubt, that there is no sufficient ground for making that determination (s 120(1))”. The application of that provision was authoritatively set out in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 where the High Court said:
“The position may be summarised as follows:
(1) ….
(2)If a reasonable hypothesis is established sub-section 1 of section 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
(emphasis added)
72. In my view, the evidence shows that facts necessary to support the hypothesis in relation to both incidents submitted by the applicant are disproved beyond reasonable doubt. While that would leave Mr Jimieson entitled to a residual right to have his claim for major depression assessed under the former SoP No 58 of 1998, that is dealt with under Step 3 and I am not satisfied that that would change my assessment under Step 4. Also, the respondent has submitted that the applicant’s credit may be in issue. Credit is a matter that refers to a person’s reputation. I do not find that there are any issues of credit, but there are issues of credibility in relation to the facts put forward to support the incidents claimed. I do not put any real weight on the differences in timing about the applicant’s submissions and the official records. I think those are matters which the passage of time and the fading of memories do not diminish the applicant’s credibility per se. However, the official records about interaction of HMAS Duchess with United States war ships and star shell exercises are merely not supported by the official records during Mr Jimieson’s operational service. There is also no other sufficient evidence to counteract that otherwise significant evidence.
73. For the above reasons, I am satisfied that there is no sufficient ground for determining that the incidents claimed are referable to Mr Jimieson’s war service.
74. That conclusion deals with the causality to operational service but does not fully answer the issue as to whether there is justification for a diagnosis of alcohol dependence or alcohol abuse. The Tribunal has found that Mr Jimieson has the three diagnoses claimed, but that none is related to operational service. The Tribunal has also found though, that he developed alcohol abuse when in the Navy and prior to discharge. It must therefore be accepted that alcohol abuse, which has now developed into alcohol dependence, had its origin, or at least existed, during Defence Service. Professor Jones’ view, which was accepted by the Tribunal, was that the depressive illness was a consequential effect of the applicant’s alcohol abuse. His major depression must therefore also be accepted as being referable to eligible defence service.
CONCLUSION
75. Based on the findings of clinical onset and the findings of fact in relation to the hypotheses submitted by the applicant, I find as follows:
(i)The decision under review is set aside;
(ii)The applicant suffers from alcohol dependence and that this condition originated during the applicant’s Naval service (eligible defence service);
(iii)The applicant suffers from a major depressive disorder as a consequential effect of alcohol abuse and subsequently, alcohol dependence. The condition of major depressive disorder is also attributable to Mr Jimieson’s eligible defence service;
(iv)Post traumatic stress disorder is not related to operational service or eligible defence service.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member.
Signed: ...................Signed................................................
Lynne Stalley, Members Support TeamDate of Hearing 14 November 2007
Date of Decision 4 January 2008
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Terrence O’Connor
Respondent Mr J Kelly, departmental advocate
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