John Lees and Repatriation Commission

Case [2014] AATA 308

[2014] AATA 308 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/0605 & 2013/0606

Re

John Lees

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey
Dr W Isles, Member
Date 16 May 2014
Place Sydney

The Tribunal affirms the decision under review.

.................................................

Senior Member J F Toohey

CATCHWORDS – VETERAN’S ENTITLEMENTS – operational service – whether veteran suffers from post-traumatic stress disorder – depressive disorder – alcohol dependence – whether conditions war-caused – whether reasonable hypothesis raised – decision under review affirmed

Legislation

Veterans Entitlements Act 1986 ss  24(1), 24(2),  120A, 120(1), 120(3), 120(4)

Cases

Repatriation Commission v Budworth 116 FCR 200

Repatriation Commission v Bawden [2012] FCAFC 176

Repatriation Commission v Deledio (1998) 83 FCR 82

Border v Repatriation Commission (No 2) [2010] FCA 1430

Bushell v Repatriation Commission (1992) 175 CLR 408

Cavell v Repatriation Commission (1988) 9 AAR 534

Forbes v Repatriation Commission [2000] FCA 328

Secondary Material

Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008

Statement of Principles concerning Depressive Disorder No.17 of 2007

Statement of Principles concerning Depressive Disorder No. 40 of 2010

Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009

REASONS FOR DECISION

Senior Member J F Toohey
Dr W Isles, Member

Background

  1. Mr John Lees served in the Royal Australian Navy from January 1965 to January 1985.  His service included ten trips on the HMAS Sydney to Vung Tau in Vietnam between April 1966 and November 1968, which constitute operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).

  2. Mr Lees suffers from a number of medical conditions which the Repatriation Commission (the Commission) has accepted are related to his service and for which he receives a disability pension.

  3. Mr Lees seeks review of a decision of the Veterans Review Board (VRB) refusing his claim for service-related post-traumatic stress disorder (PTSD), depressive disorder and alcohol dependence, and assessing him as entitled to 50 per cent of the General Rate of pension from 24 November 2009 to 23 August 2011, and to 70 per cent from 24 August 2011.

  4. Mr Lees contends that:

    (i)he suffers from PTSD, depressive disorder and alcohol dependence, each of which is related to his operational service; and

    (ii)he is entitled to the Special Rate of pension.

  5. The Commission:

    (i)disputes Mr Lees’ claim to suffer from service-related PTSD, depressive disorder and alcohol dependence; and

    (ii)contends that he does not satisfy s 24(1)(b) or (c) of the Act, both of which must be satisfied if he is to qualify for the Special Rate of pension.

    Standard of proof

  6. In determining whether an injury or disease is related to a veteran’s operational service, the standard of reasonable hypothesis applies: s 120 of the Act.  Whether a hypothesis is reasonable is assessed in accordance with any relevant Statements of Principles (SoPs), or determinations or declarations under the Act: s 120A.

  7. In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).

    Summary…

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AGLC
John Lees and Repatriation Commission [2014] AATA 308
Case
[2014] AATA 308
Decision Date

CaseChat Overview and Summary

In the case of Lees v Repatriation Commission, the Federal Court of Australia was tasked with determining whether Mr John Lees, a former member of the Royal Australian Navy, suffered from post-traumatic stress disorder (PTSD) as a result of his service. The Court was also required to determine if Mr Lees' conditions were related to his operational service and if he qualified for Special Rate of pension. The case involved a review of Mr Lees' experiences during his service, including his sentry duty, encounters with armed soldiers, and other traumatic events during his time in Vietnam. The Court examined Mr Lees' evidence, expert opinions, and other relevant material to assess whether he met the diagnostic criteria for PTSD.

The primary legal issue before the Court was whether Mr Lees suffered from PTSD and if his condition was related to his service. The Court also had to determine if Mr Lees qualified for Special Rate of pension. The Court assessed the evidence and expert opinions, considering the diagnostic criteria for PTSD as outlined in the Standard of Practice (SoP) No5 of 2008. The Court found that while Mr Lees' experiences during his service were traumatic, they did not meet the criteria for a category 1A stressor, which is necessary for a PTSD diagnosis. The Court also found that Mr Lees did not meet the criteria for Special Rate of pension.

The Court concluded that Mr Lees did not suffer from war-caused PTSD, as his experiences did not meet the diagnostic criteria for PTSD. The Court found that Mr Lees' response to the traumatic events was not one of intense fear, helplessness, or horror, as required by the diagnostic criteria. The Court also found that Mr Lees did not qualify for Special Rate of pension, as he was not totally and permanently incapacitated or prevented from undertaking remunerative work by his war-caused conditions alone. The Court did not find Mr Lees' evidence to be altogether reliable, given the time that had passed since the events occurred and his limited recollection of details.

In summary, the Court held that Mr Lees did not suffer from war-caused PTSD and did not qualify for Special Rate of pension. The Court's decision was based on its assessment of the evidence and expert opinions, and its interpretation of the diagnostic criteria for PTSD. The Court found Mr Lees to be a genuine and truthful person who gave his evidence frankly and recalled events to the best of his recollection. However, the Court concluded that his experiences did not meet the criteria for PTSD and did not qualify for Special Rate of pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A category 1A stressor in the SoP 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; Mr Lees’ evidence Mr Lees was 15 when he joined the Navy. He was 16 when he made his first trip to Vietnam on the HMAS Sydney. The ship would be at anchor in the harbour for one or two days.. Mr Lees describes being “in awe” on first arriving at Vung Tau at the activity in the harbour including flashes from explosions on shore at night. He says, the feeling wore off over time, however, and he started to wonder “what if ...”. Mr Lees refers to the following as causing, or contributing to, his PTSD:(i)having to undertake sentry duty at night on the HMAS Sydney;(ii)an incident during which a soldier pointed a rifle at him and others;(iii)being on small motor boats patrolling around the ship for enemy divers;(iv)hearing “depth charges” exploding (by which it is agreed he means “scare charges”).Sentry duty On his first trips to Vietnam Mr Lees was assigned duty as a sentry officer on the upper decks while the HMAS Sydney was in Vung Tau harbour. As he recalls, he performed this sentry duty about nine times in all, in four-hour shifts. He and others had to patrol from the deck at night; they were given an unloaded rifle and flashlight, and a whistle to blow if they saw or heard anything suspicious. He was told that the duty officer would respond immediately if he blew the whistle and would tell him what to do. Mr Lees says he blew his whistle “on numerous occasions” but no-one responded. He clarified in oral evidence that it could have been three to five times that he thought he saw something in the water; apart from once, when the duty officer found there was a branch floating in the water, no one came. He describes this as “a truly terrifying experience” because he thought the ship was under attack. A report from his treating psychiatrist, Dr Graham Altman, shows Mr Lees told Dr Altman:There I am and I think the enemy is coming and no one came. I was terrified … total fear … I thought I was dead. Counsel for the Commission put it to Mr Lees that other sailors were also patrolling and he could have gone and told someone if he saw something or if no-one came. Mr Lees did not disagree but still said he blew his whistle and no one came. Giving oral evidence, Mr Lees described his sentry duty experience as “the crux of the thing” by which we understand him to say it was the most significant of his traumatic experiences, although this is not entirely clear from his evidence. The rifle incident Mr Lees describes an incident on board HMAS Sydney on his first or second trip to Vung Tau when he was with soldiers from the Australian Army who had completed their tour of duty. He was cleaning the ship’s stations near the mess deck when a soldier took a rifle and threatened him and some of the other soldiers; he was the only sailor present and he was terrified thinking the soldier was going to kill him.

Decision

Reasons for decision

In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).Summary of decision For the reasons that follow, we are not satisfied that Mr Lees suffers from PTSD. We accept that the events he describes in his evidence occurred, but we are not satisfied that he experienced a traumatic event of the kind necessary for that diagnosis to be made out. As we are not satisfied that Mr Lees has PTSD, it is not necessary to decide whether he has service-related PTSD. We are reasonably satisfied that Mr Lees suffers from depressive disorder which had its clinical onset around 2003. We are satisfied that he suffers from alcohol dependence dating back many years, possibly as early as 1966. In each case, however, a decision that the condition is war-caused depends on a reasonable hypothesis being made out connecting it with Mr Lees’ operational service. In each case, a reasonable hypothesis would rely on there being material pointing to his having experienced a category 1A or 1B stressor related to his service. As we are not satisfied that Mr Lees experienced either, we are satisfied beyond reasonable doubt that there is no sufficient ground for finding his conditions to be war-caused. In the case of alcohol dependence, an alternative reasonable hypothesis might be raised if there was material pointing to Mr Lees having a clinically significant psychiatric disorder at the time of onset of his condition.. For the reasons below, that hypothesis is not raised by the material before us. In the claim for Special Rate of pension, we are not satisfied that Mr Lees is totally and permanently incapacitated within the meaning of s 24(1)(b) of the Act, or that he is prevented by his war-caused conditions alone from continuing to undertake remunerative work and is thereby suffering a loss of salary or wages that he would not otherwise be suffering. It follows that he cannot satisfy the criteria to qualify for Special Rate of pension. Nothing in our decision should be taken to reflect adversely on Mr Lees’ honesty. We found him to be a genuine person who gave his evidence frankly and recalled events to the best of his recollection. Does Mr Lees suffer from war-caused PTSD? The first question we have to determine is whether we are reasonably satisfied that Mr Lees in fact suffers from PTSD. Only if so satisfied are we then required to determine whether his condition is related to his operational service: Repatriation Commission v Budworth 116 FCR 200; Repatriation Commission v Bawden [2012] FCAFC 176. Whether Mr Lees suffers from PTSD requires examination of the symptoms he complains of by reference to relevant diagnostic criteria. Evidence from Mr Lees, his wife Barbara Lees, former shipmate Ronald James, treating and consulting doctors, and the report of an investigation by Writeway Research Services Pty Ltd, are relevant to this inquiry. The diagnostic criteria for PTSD are drawn from the Diagnostic and Statistical Manual of Mental Disorders 4th edition (DSM-IV) and are set out in SoP No5 of 2008 (Post traumatic Stress Disorder). For the purposes of the SoP, PTSD means a psychiatric condition meeting the following diagnostic criteria:(A)the person has been exposed to a traumatic event in which: (i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and (ii) the person’s response involved intense fear, helplessness, or horror; and (B)the traumatic event is persistently re-experienced in one or more of the [ways described in the SoP].

Ratio Decidendi

Legal Principle Established

Even allowing the incident occurred, in Dr Smith’s view it does not meet the criteria for a category 1A stressor. He agreed that, if a gun is pointed at a person who does not know whether it is loaded or not, then “strictly speaking” if that person thought they were threatened death or injury, PTSD could result. However, he said, the DSM-IV in effect requires a person to be “overwhelmed with fear” and nothing in Mr Lees’ history at the time or since suggested a response of that type. He questioned why, if it was so distressing, it did not apparently intrude into Mr Lees’ work after he left the Navy, or into his marriage and social life, all of which appeared to have been successful. Consideration We do not understand the Commission to suggest, and we do not suggest, that Mr Lees has not been truthful in giving evidence. We found him to be a genuine and truthful person who did his best to recall events. However, not surprisingly given they occurred nearly 50 years ago and he has rarely discussed them, his memory for details such as dates and the sequence of events is poor. In our view, despite his best efforts, his evidence is not altogether reliable. The Writeway Report raises serious questions as to whether the rifle incident occurred at all, but we accept Mr Lees’ evidence that an incident occurred which broadly met his description. However, a diagnosis of PTSD requires not only an event or events involving actual or threatened death or serious injury but also a response of intense fear, helplessness or horror. In Border v Repatriation Commission (No 2) [2010] FCA 1430, Reeves J said:The effect of the event and not the event itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. … this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restricted manner. The evidence does not suggest that the rifle incident posed any actual or threatened death or serious injury to Mr Lees but we accept he may have perceived at the time that it did. No doubt the incident was unnerving and unsettling, even frightening, but we do not accept his response was one of intense fear, helplessness or horror. We prefer Dr Smith’s opinion that Mr Lees does not meet the criteria for PTSD to Dr Dinnen’s opinion that he does. Dr Smith based his opinion on the specific events described by Mr Lees and his responses to them, taking into account his successful work and personal life for many years after leaving the Navy. Dr Dinnen appeared to base his opinion largely on Mr Lees’ “subjective” experience and the cumulative effect on a young sailor of experiences of war. He does not say the incidents described by Mr Lees provoked “intense fear, helplessness or horror”. While Dr Altman diagnosed him as suffering from PTSD, he also did not describe the intense response required by the diagnostic criteria.