Keep and Repatriation Commission
[2007] AATA 1409
•6 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1409
ADMINISTRATIVE APPEALS TRIBUNAL N°V 200600545
VETERANS' APPEALS DIVISION Re: KYLIE MICHELLE KEEP Applicant
And:
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal:Mr Egon Fice, Member
Date:6 June 2007
Place:Melbourne
Decision:The decision of the Veterans’ Review Board made on 14 February 2005 should be set aside and this matter remitted to the Repatriation Commission for assessment of pension payable to Ms Keep.
(sgd) Egon Fice
Member
VETERANS’ AFFAIRS – war-caused injury – depressive disorder – anxiety disorder – pathological gambling – Statement of Principles revoked after commencement of hearing – sequential approach to dealing with revoked Statement of Principles – jurisdiction to deal with defence-caused injury – reasonable hypothesis where no Statement of Principles determined – experiencing a life-threatening event – being threatened with a weapon – objective and subjective requirements – experiencing bullying in the workplace – experiencing a severe psychological stressor
Acts Interpretation Act 1901
Military Compensation Act 1994
Military Rehabilitation and Compensation Act 2004
Safety, Rehabilitation and Compensation Act 1988
Veterans’ Entitlements Act 1986
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 32
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 197 ALR 283
White v Repatriation Commission [2004] FCA 633
Woodward and Another v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
6 June 2007 Mr Egon Fice, Member
1. Ms Kylie Keep enlisted in the Australian Army on 27 February 1991. She was allocated to the Australian Army Catering Corps to work as a cook.
2. Ms Keep rendered operational service as defined in the Veterans’ Entitlements Act 1986 (the VE Act) in East Timor between 14 January 2000 and 20 February 2000. On 29 July 2004, Ms Keep made a claim for a disability pension under the VE Act. The claim was based on incapacity arising from a depressive condition as well as a left leg and knee condition.
3. The Repatriation Commission (the Commission) accepted Ms Keep’s claim in respect of her left leg. The Commission refused her claim for depressive disorder with obssessional features and plica of the left knee, deciding that these conditions were not related to her military service.
4. Ms Keep applied to the Veterans’ Review Board (the VRB) for a review of the Commission’s decision. Ms Keep withdrew her claim in respect of her left knee in the course of the hearing before the VRB which proceeded to determine her claim for depressive disorder with obssessional features. In a decision made on 8 February 2005, the VRB affirmed the decision of the Commission. Ms Keep now seeks a review of the VRB decision denying her claim for depressive disorder with obssessional features.
5. Although Ms Keep’s claim before the VRB was for depressive disorder with obsessional features, the claim before me is stated as aggravation of depression, anxiety and pathological gambling. Ms Keep also claimed that she suffered a further aggravation of depressive disorder following her return from East Timor. This was described as the second depression hypothesis by Ms J Bornstein of counsel, who appeared on behalf of Ms Keep. Although the conditions which Ms Keep claims she suffers from were not put to me in the same way as they were before the VRB, the Commission did not take any objection to the way in which the claims were stated before the Tribunal. The Commission also did not dispute the fact that Ms Keep suffered at least two major depressive episodes; that she suffered from anxiety and also, from time to time, pathological gambling. The central issue before me is whether Ms Keep’s claimed conditions are war-caused injuries in that they resulted from an occurrence that happened while she was rendering operational service. There is an additional, jurisdictional issue, regarding Ms Keep’s claimed second depression hypothesis. That claim has been brought under the VE Act and there is a question as to whether the Tribunal has jurisdiction to hear that claim given that it does not relate to Ms Keep’s operational service. Furthermore, the claim arose after 7 April 1994, which was the commencing date for the Military Compensation Act 1994 (the MC Act).
RELEVANT FACTS
6. Ms Keep served in the Australian Army between 27 February 1991 and 9 February 2005. On 6 June 1991, Ms Keep began a course to train as a cook Grade 1. She completed the course on 3 October 1991. Throughout her service career, Ms Keep remained in the Catering Corps.
7. Ms Keep was promoted to the rank of Corporal in 1998 and she was posted to the 3rd Brigade Administrative Support Battalion (3BASB) with effect from 18 January 1999.
8. 3BASB deployed to East Timor on 25 September 1999, remaining there until 29 January 2000. Ms Keep did not deploy with 3BASB in September 1999 because, at that time, she was medically unfit for operational duties. She was detached to Tully until she was considered to be medically fit for overseas deployment in January 2000.
9. Prior to embarking for East Timor, Ms Keep undertook training in Darwin for operational deployment. That training was directed specifically to the East Timor deployment and it involved a fitness test, weapons training, some basic instruction in Tetum, the East Timorese national language, and briefings on the general conditions in that country as well as the rules of engagement in the event of a lethal confrontation. As part of her general training, Ms Keep was qualified in the use of the F88 AuSteyr assault rifle and had maintained proficiency in the use of that weapon.
10. Ms Keep joined 3BASB in East Timor on 14 January 2000. It formed a part of the Force Logistics Support Group (FLSG). Ms Keep worked in four kitchens in the five weeks that she was stationed in East Timor. Although 3BASB redeployed to Australia on 28 January 2000, Ms Keep remained in East Timor, working in a number of other kitchens, including the Force Extraction Team (FET) kitchen from 23 January 2000 until about 28 January 2000. After the majority of 3BASB personnel returned to Australia, Ms Keep was deployed to work at the FLSG kitchen. This kitchen was part of the 10th Support Force Battalion (10FSB) which then handed over to 9th Support Force Battalion (9FSB). The three physical locations where Ms Keep was employed were reasonably close together.
11. From 20 January 2000 until its departure from East Timor, 3BASB underwent a process with the FET which involved cleaning all of its equipment to enable it to pass Australian quarantine inspection on return to Australia. The security patrols which were conducted around the 3BASB area of operations ceased on the night of 19 January 2000.
12. Between 14 January 2000 and 19 January 2000, soldiers from 3BASB conducted patrols outside the perimeter of 3BASB operations. Some 3BASB personnel were also assigned to a Ready Reaction Force, which was separate from the regular patrolling program. These soldiers were stationed inside the front entry of the 3BASB building and were at high readiness to react to an unforseen event in 3BASB area of operations. The Ready Reaction Force was equipped with a Land Rover 4-wheel drive vehicle.
13. Ms Keep returned to Australia on 21 February 2000. One or two weeks prior to returning to Australia, she injured a shin when she fell down a drain. She was hospitalised overnight but then went back to work in the kitchen on light duties.
LEGISLATIVE SCHEME
14. Section 9 of the VE Act provides that, subject to s 9A (which does not apply to Ms Keep), 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 the injury suffered or the disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service, or which arose out of, or was attributable to, any eligible war service rendered by the veteran. Section 9 also provides that where the injury suffered or the disease contracted by the veteran was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service, and, where in the opinion of the Commission the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted the disease, the injury or disease suffered by the veteran is taken to be a war-caused injury or disease.
15. Section 13(1) of the VE Act provides that where:
(a)the death of a veteran was war‑caused; or
(b)a veteran is incapacitated from a war‑caused injury or a war‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
16. The Commission did not dispute that Ms Keep satisfied the definition of veteran under s 5C of the VE Act, having rendered eligible war service which is defined in s 7 to include operational service. There is no question that Ms Keep’s service in East Timor was operational service.
17. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where operational service was rendered by the veteran, that the injury, disease or death of the veteran was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given that Ms Keep rendered operational service, s 120(1) applies to her claim for the purposes of establishing the causal connection between her war service and her depressive disorder, anxiety and pathological gambling.
18. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth. For the hypothesis or proposition to be reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply in relation to a claim for incapacity resulting from injury or a disease, or death of a person where the Repatriation Medical Authority has neither determined an SoP under s 196B(2) nor declared that it does not propose to make an SoP in respect of the kind of injury, disease or death, as the case may be.
19. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ said:
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.
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.
20. There is one further legislative complication in this matter. The SoP dealing with depressive disorder which was current at the time Ms Keep made her claim was Instrument Number 58 of 1998. That SoP was revoked by Instrument Number 17 of 2007, which came into effect on 10 January 2007. The parties seemed to be of the view that in these circumstances, Ms Keep could elect which SoP she would rely upon to establish a reasonable hypothesis connecting her claimed depressive disorder with her operational service. This approach appears to have arisen out of the decision made by the Full Court of the Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108. In that case, when the application to the Tribunal came on for hearing for review of the VRB decision, the SoP which was in force at the time VRB made its decision had been revoked and replaced by a new SoP which was less favourable to the applicant. Lee and Cooper JJ said, at pages 122-123, that the terms of the SoP determined under s 196B of the VE Act more than clarified the meaning of the terms used in s 120(3) and how they are to be applied. Their Honours stated that the SoPs, which purported to restrict the operation of s 120(3) to the terms of the SoP determined under s 196B, formed the nature of the right that was to be determined under the VE Act by the application of the provisions of s 120. Their Honours concluded;
[46] Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. …
21. Kiefel J agreed with Lee and Cooper JJ, stating, at page 130, that an SoP cannot relate only to procedure but that the introduction of the second SoP affected the right to a pension under s 13 of the VE Act, as the first SoP had. Therefore, the repeal of the first SoP affected the content of Mrs Keeley’s right. Kiefel J concluded that s 50 of the ActsInterpretation Act 1901 operated, thereby preventing the repeal of the first SoP from affecting any right accrued under the revoked SoP.
22. The Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 32, comprising Heerey, Emmett and Allsop JJ, was invited to re-consider the decision in Keeley. It declined to do so. Although Heerey J said that the SoP was substantive, something which determines rights, rather than a procedural measure relating to the enforcement of those rights (page 331), he was of the view that, consistent with the decision in Keeley, a later SoP could nevertheless apply. He expressly stated that it did not involve any question of election on any part of the claimant. He then said:
[42] … The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which "is in force": s120A(3); see s43 AAT Act. If the current SoP "upholds" the claimant's hypothesis then the AAT moves, pursuant to s120(1), to consider whether it has been disproved beyond reasonable doubt.
[43] If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s120(1).
23. Allsop J, with whose reasons Emmett J agreed, expressed a different view regarding the characterisation of the role of SoPs in the VE Act. Although he agreed that it was an inadequate description to say that the SoPs are merely evidential and procedural, Allsop J was of the view that they did not affect accrued rights at all and were not intended to do so. Despite holding a different opinion about the characterisation of the nature of the SoPs, Allsop J was nevertheless of the view that Keeley should be followed and applied. He also said, at pages 334-335;
… That is, while I recognise that Keeley stands for the proposition that a claimant is entitled to an accrued right to have his or her claim considered and reviewed by the Tribunal on the basis of the SoP current at the time of the Commission's decision despite the later revocation of that earlier SoP, Keeley does not stand for the proposition that the SoP in force at the date of the Tribunal hearing must not be applied.
24.Allsop J concluded, at page 336;
[65] If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission's decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SoP. This is not a right of "election". It is a sequential approach mandated by a combination of the Act and the Full Court's decision in Keeley.
25. The effect of the decision in Gorton on this matter is that I am first required to apply Instrument Number 17 of 2007 in Ms Keep’s depressive disorder claim. If her hypothesis is upheld by that SoP, I need not examine whether it is upheld by Instrument Number 58 of 1998. However, if her hypothesis is not upheld by Instrument Number 17 of 2007, I should then assess her hypothesis under Instrument Number 58 of 1998 in accordance with the accrued rights recognised in Keeley.
THE SECOND DEPRESSION HYPOTHESIS - JURISDICTION
26. Ms Keep claims that she experienced a specific incident in the course of her eligible service in about July 2000 which caused her to feel substantial distress. She claimed that, as a result, she suffered an aggravation of depressive disorder and that she has, since that incident, continued to suffer from depressive disorder. The undisputed evidence is that Ms Keep returned from East Timor on 21 February 2000. Therefore, this claim must necessarily fall within the provisions of Part IV of the VE Act dealing with pensions for members of the Defence Force arising out of a defence-caused injury or defence-caused disease (see s 70). An injury or disease is defence-caused if it arose out of or was attributable to any defence service. Defence service is defined at s 68 of the VE Act as continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date. The term, terminating date, is defined in s 68 and it means the date on which the MC Act commences (7 April 1994). The problem for Ms Keep is that the full-time service she rendered as a member of the Defence Force, at the time that she claims to have suffered the second depression incident, falls outside the cut-off date which defines defence service for the purposes of the VE Act. After 7 April 1994, Defence Force personnel are covered by the Military Compensation Scheme, which is based on the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
27. As Robin Creyke and Peter Sutherland state in their text, Veterans’ Entitlements Law (The Federation Press, 2000), at page 334: before the commencement of the MC Act, between 7 December 1972 and 6 April 1994, compensation for members of the Defence Force was provided under the SRC Act (and its predecessor) and the VE Act. To qualify for pension under the VE Act, members had to complete a minimum of three years service unless they were medically discharged. Once qualified, members of the Defence Force could claim under both Acts. However, this is not the case where the claim arose after 7 April 1994. Although Members of the Defence Force who enlisted on or after 22 May 1986 (the commencement date of the VE Act) had a dual compensation entitlement for injury or disease suffered from peacetime service before 7 April 1994, they are only covered by the SRC Act for injury or disease from peacetime service suffered on or after that date. Those members of the Defence Force who enlisted after 7 April 1991, because they could not complete the necessary three years for eligibility under the VE Act, can only claim compensation for injury or disease arising from their peacetime service under the SRC Act. Therefore, Ms Keep’s claim, which arose from peacetime service rendered in July 2000, must necessarily be a claim under the SRC Act. Although not relevant in Ms Keep’s case, from 1 July 2004, which is the commencement date for the Military Rehabilitation and Compensation Act 2004, all injuries and conditions arising from service in the Australian Defence Force are covered by that Act.
28. For the Tribunal to have jurisdiction to deal with Ms Keep’s second depression hypothesis, a reviewable decision, as defined in s 60 of the SRC Act, would have to exist. Section 64 of the SRC Act provides for an appeal to the Administrative Appeal Tribunal for a review of a reviewable decision. A reviewable decision means a decision made under s 38(4) or s 62 of the SRC Act. As there was no evidence at all of any such decision, I am satisfied that the Tribunal does not have jurisdiction to review Ms Keep’s claim arising out of the incident in July 2000.
DEPRESSION AND ANXIETY CLAIMS - DIAGNOSIS
29. Although the respondent did not dispute a diagnosis of depression, some concern was expressed as to whether that was in remission and whether there might also be an accompanying anxiety disorder. As Ms Bornstein submitted, the issue of diagnosis is to be determined to the Tribunal’s reasonable satisfaction in accordance with s 120(4) of the VE Act (see Benjamin v Repatriation Commission (2001) 70 ALD 622 at paragraph 54).
30. Ms Keep’s army medical records indicate that she was referred to a psychologist, Ms D Drew, in April 2000 shortly after her return from East Timor. The treatment was described as cognitive therapy for work stress and relationship problems. Her medical board examination record dated 19 June 2000 indicates that Ms Keep was undergoing psychological counselling for depression and that she was also taking anti-depressants at that time. She was diagnosed with depression and obsessive compulsive disorder trait. An out-patient clinical record dated 23 August 2000 notes that Ms Keep was admitted to the medical centre for depression. She was treated with the drug Luvox. On 13 September 2000 Ms Keep was examined by Professor B James, a consultant psychiatrist, to whom she had been referred. He noted that Ms Keep had long standing dysphoric symptomatology and an exacerbation of depressed affect over the past two years, and in recent months in particular. Dr Dawood, who examined Ms Keep in December 2000, diagnosed major depressive disorder. Dr T George, a psychiatrist, who examined Ms Keep on 27 May 2003, assessed Ms Keep to be suffering from a depressive illness complicated by obsessional symptoms. Dr George also noted that at the time he examined Ms Keep she was troubled with a variety of problems including worsening depressive symptoms. Ms Keep was again admitted to hospital on 18 March 2004 with a diagnosis of depression. In her history, it is noted that Ms Keep has been in depression for about four years, and she has been on and off anti-depressants.
31. Ms Keep was examined by Dr R Haik, a psychiatrist, on 23 June 2005. The purpose of that examination was to provide a psychiatric assessment for the Department of Veterans’ Affairs. Dr Haik noted that there was no clinical evidence of anxiety or depression during his interview with Ms Keep. Nevertheless, Dr Haik reported that there was no doubt Ms Keep had suffered several episodes of major depressive disorder. Dr Haik also reported that Ms Keep has a distinct previous disposition to major depressive disorder. He said her prognosis regarding recurrence of a major depressive episode was poor and that she would be well advised to continue to take anti-depressant medication for the long term. He confirmed a diagnosis of depressive disorder with obsessional features. According to Dr Haik, the clinical onset of depressive disorder was in about September 2000. Although the medical report of April 2000 mentioned early mild depression, according to Dr Haik, that could not be regarded as depressive disorder as defined (I assume in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)). However, the current SoP dealing with depressive disorder provides that for the purposes of the SoP, depressive disorder means a group of psychiatric conditions which are manifested by a dysphoric mood. The definition is limited to major depressive episode, recurrent major depressive disorder, dysthymic disorder, or depressive disorder not otherwise specified. There are a number of disorders covered by the diagnosis depressive disorder not otherwise specified including minor depressive disorder and recurrent brief depressive disorder. For the purposes of the SoP dealing with depressive disorder, it means a disorder where depression features that does not meet the criteria for the disorders I have referred to above. Dr Haik also reported that if Ms Keep had a severe depressive disorder in April 2000, then she would have received medication rather than counselling. However, as her medical records indicate, she was treated with Luvox (an anti-depressant) in 2000.
32. Dr E Parmegiani, a consultant psychiatrist, treated Ms Keep in 2004 when he worked with the Australian Army. Dr Parmegiani, in a report dated 2 February 2005, said that Ms Keep was diagnosed with major depression by Professor James in Townsville in 2000, after her recent deployment to East Timor. Ms Keep consulted Dr Parmegiani in January 2004 with symptoms of ongoing depression. He treated Ms Keep with a combination of Efexor (an anti-depressant) and Zyprexa (an anti-psychotic). He also noted that in the past she had been treated with other anti-depressants including Luvox and Zoloft. Dr Parmegiani noted on his last review of Ms Keep in February 2005 that she displayed lingering symptoms of depression.
33. Associate Professor N Paoletti, a psychiatrist, examined Ms Keep on 16 March 2006 for a medico-legal report. He reported that when he examined Ms Keep she was anxious and dysthymic. In his opinion, Ms Keep suffered from a mixed anxious/depressive state which was partially treated and which, for the purposes of DSM-IV, included:
(a)major depressive disorder, recurrent, in partial remission;
(b)anxiety disorder not otherwise specified, with some features of post traumatic stress disorder; and
(c)pathological gambling.
Associate Professor Paoletti also stated that depression was inherently accompanied by anxiety. As to the clinical onset of depression and anxiety, he stated that Ms Keep’s tour of duty in East Timor appeared to have been crucial in the creation of a quantum shift in a history of depressive episodes which included events not related to her service in the army.
34. I am reasonably satisfied from the medical evidence that Ms Keep suffers from depressive disorder and anxiety disorder.
THE FIRST STEP ACCORDING TO DELEDIO
35. According to Ms Keep, there were five discrete events or identifiable occurrences which took place in the course of her service in East Timor which she claims connect her diseases with her service.
The vehicle patrol
36. In the first week that Ms Keep was in East Timor, she said that she was selected to be in charge of a vehicle patrol outside the perimeter of the 3BASB base. There were five other soldiers in the vehicle with her. She said that as the vehicle was driving past an alleyway, there was a man standing in the alleyway with his hands behind his back and he looked suspicious. The vehicle stopped and she approached the man thinking that he may have had a weapon. She told him to put his hands in the air and to stop. At that time Ms Keep said she thought she might have to shoot at the person. She said she felt scared, terrified and helpless. Ms Keep claimed that memories of that incident, particularly the fact that she may have had to take another person’s life, caused her to be upset.
Contact with civilians
37. Ms Keep worked in various kitchens with local civilians and she said that she had conversations with those civilians who told her about families that they had lost and the actions of the militia when the violence broke out in 1999. She said that the accounts given by the locals made her feel very sad for them and helpless. She said she felt a lot of grief for them.
Begging for food
38. Ms Keep said for the first two and a half weeks in East Timor she worked at the 3BASB kitchen which was on the perimeter fence of the 3BASB compound. The kitchen was on a slab of concrete with a canvas roof over the top. It was otherwise open. She said that as the concertina wire surrounding the compound was immediately adjacent to the dining room, many children and families, both men and women came to the perimeter fence begging for food, yelling and screaming that they wanted food and drinks because they were hungry. She said that she wanted to give them food but she was not allowed to do so. She said she felt sorry, particularly for the children. She felt helpless and very upset.
Viewing the scene of a murder
39. On returning from another kitchen to 3BASB in the company of a sergeant, she was told by the sergeant that there were sites in Timor where murders had taken place. The sergeant pulled the vehicle off to the side of the road in a park-like area and pointed to a free standing wall which she said had stains on it that looked like blood stains. The sergeant told her that people had been killed by the militia at that site. She said she felt scared, helpless and sick and was in shock.
Warrant Officer Green
40. On arrival in East Timor, she was conveyed to the 3BASB compound and reported her arrival to Warrant Officer Green at his office. According to Ms Keep, Warrant Officer Green said:
Where the fuck have you been? Why the fuck weren’t you here three weeks ago? We have been waiting for you; there is no point in you being here now. We have only got three weeks to go, what is going on?
Ms Keep said that she attempted to explain to Warrant Officer Green that she was held up in Townsville because of a medical condition. However, according to Ms Keep, Warrant Officer Green continued yelling and screaming and abusing her saying:
I don’t fucking want excuses. Get out of my sight. Go with the other cooks and fuck off.
Ms Keep said that she felt belittled and hopeless. She was upset and sad and didn’t know what to say or do. She also said there were other occasions where Warrant Officer Green spoke to her in that way.
41. Quite clearly the material referred to above does point to a hypothesis connecting Ms Keep’s diseases with the circumstances of her operational service.
THE SECOND STEP ACCORDING TO DELEDIO – SOPS FOR DEPRESSION AND ANXIETY
42. I have already dealt with the relevant SoPs concerning depressive disorder. Instrument No 17 of 2007 is the SoP in force at the time of making this decision although Instrument No 58 of 1998 may become relevant if Ms Keep’s claim cannot succeed under the current SoP. As I have previously said, these SoPs must be dealt with sequentially.
43. The relevant SoP concerning anxiety disorder is Instrument No 1 of 2000.
THE SECOND STEP ACCORDING TO DELEDIO– PATHOLOGICAL GAMBLING
44. The Repatriation Medical Authority has not determined an SoP concerning pathological gambling. The Full Court in Deledio said that if no SoP is in force, the hypothesis will be taken not to be reasonable and therefore the application must fail. The Full Court in that case did not have reason to consider the operation of s 120A(4) of the VE Act, which provides that s 120A(3), which deals with the reasonableness of the hypothesis, does not apply to a claim in respect of a disease if the Repatriation Medical Authority has neither determined an SoP under s 196B(2), nor declared that it does not propose to make such an SoP in respect of the kind of disease contracted by the person. Weinberg J in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, at page 698, explained that the last sentence under step 2 of the Deledio steps is inaccurate. He pointed out that it is only where the Repatriation Medical Authority has formally declared that it will not make an SoP that the hypothesis will be taken not to be reasonable and therefore the application will necessarily fail. Although no SoP has been determined concerning pathological gambling, the Repatriation Medical Authority has not declared that it does not propose to make such an SoP. Therefore, I need to rely on what was said by various courts dealing with hypotheses before the introduction of SoPs. In other words, I need to examine cases which have dealt with claims made prior to 1 June 1994.
45. The Full Court of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517 said, at page 533:
…A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. …
46. The High Court of Australia (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564, said, at page 571:
…The position may be summarised 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. …
47. In Bushell v Repatriation Commission (1992) 109 ALR 30, Mason CJ, Deane and McHugh JJ said, at page 34:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. …
48. In my opinion, the material does point to a hypothesis connecting Ms Keep’s operational service with her pathological gambling. Ms Keep’s evidence was that she did gamble (socially) before going to East Timor. Upon her return from East Timor, she said she began to gamble a lot more and to drink a lot more; but that she gambled basically to escape and that she continued to gamble on and off for several years after that. In cross-examination, Ms Keep said that by social gambling she meant that she gambled heavily but she was never out of control. That was not the way that she gambled after she got back from East Timor. She said that after she got back from East Timor she gambled on everything. In his report dated 23 June 2005, Dr Haik said that Ms Keep had long term features of pathological gambling, which appeared to have been a means of escaping a dysphoric mood. Dr Haik also referred to DSM-IV, where the diagnostic criteria for pathological gambling includes:
5. gambles as a way of escaping from problems or relieving dysphoric mood (eg., feelings of helplessness, guilt, anxiety, depression)
49. Given that Ms Keep has been diagnosed as suffering from anxiety and depression, in my view, the evidence discloses a reasonable hypothesis connecting Ms Keep’s operational service with her pathological gambling.
THE THIRD STEP ACCORDING TO DELEDIO – DEPRESSIVE DISORDER AND GENERALISED ANXIETY DISORDER
50. The SoP in force which deals with depressive order is Instrument Number 17 of 2007. That SoP sets out a number of factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of a person’s relevant service. Ms Bornstein submitted that the factors which exist in Ms Keep’s case are factors 6(b) - experiencing a category 1A stressor within five years before the clinical onset of depressive disorder; or factor 6(f) - experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder.
51. A category 1A stressor is defined in the SoP to include experiencing a life threatening event or being threatened with a weapon. Insofar as it is relevant, a category 2 stressor is defined in the SoP to include experiencing bullying in the workplace.
52. As for experiencing a category 1A stressor, Ms Bornstein referred to the incident where Ms Keep said she was confronted by a man in an alleyway who she thought was carrying a weapon. This occurred when Ms Keep was on a vehicle patrol during her first week in East Timor. According to Ms Keep, she was rostered to conduct a night vehicle patrol around the perimeter of the 3BASB compound. She said she was the only corporal on that patrol and that the other soldiers, being some five in number, were privates. The purpose of the patrol was to drive around for a couple of kilometres outside the perimeter of the 3BASB compound to make sure there was nothing suspicious happening out on the streets and that everything was quiet. She said the patrol would take anywhere from 30 minutes to 50 minutes. Ms Keep said she was in charge of the patrol and it was conducted in darkness, between 8.30pm and 9.30pm. She said that as they were driving along she noticed a man standing in an alleyway with his hands behind his back and that he looked suspicious. She told the driver to stop and three of the soldiers disembarked from the Landrover. She said that she confronted the man in the alleyway. She said that she felt scared because she thought he had a weapon, a machete or something behind his back, and she was concerned that he could have attacked her. She said she went through the rules of engagement in her mind and she told the man to put his hands in the air and to stop. She said the man didn’t obey her order and she thought at the time that she may have to fire at him because she considered him to be a threat. He was mumbling in East Timorese and she couldn’t understand what he was saying. She said she was terrified at the thought of having to use her weapon. Ms Keep said that she gave the man a second warning which he then heeded and removed his hands from behind his back and put them in the air. It was clear that the man was not armed and she was very relieved and sent the man on his way. The vehicle patrol was completed and she returned to the 3BASB compound.
53. Mr G Purcell of counsel, who appeared for the Commission, submitted that the event described by Ms Keep when on vehicle patrol did not fit within the definition of a category 1A stressor in that she did not experience a life-threatening event, or, alternatively, she was not threatened with a weapon. However, the Full Court of the Federal Court in Woodward and Another v Repatriation Commission (2003) 131 FCR 473, agreeing with Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283, said at page 498:
Mansfield J concluded that the AAT erred in law in its understanding of the expression "experiencing a severe stressor" in each of the relevant SoPs by requiring there to be an actual threat, judged objectively and with full knowledge of all the circumstances. In his Honour's opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation. …
54. Adopting the reasoning of the Full Court in Woodward, I am not required to find that there was an actual threat, judged objectively and with full knowledge of all the circumstances. Ms Keep claims she was confronted by a man behaving suspiciously with his hands behind his back. According to her, she considered that the man posed a threat because he appeared to have something behind his back which he was not prepared to disclose to her. She thought he may have been armed and, judged objectively from the point of view of a reasonable person in her position, and assuming the facts are as reported by Ms Keep, it is my view that such an event was capable of conveying and did convey to Ms Keep a threat to her life. Similarly, I believe that the event was capable of conveying and did convey to Ms Keep a threat with a weapon despite the fact that shortly after the initial confrontation, she became aware that there was no weapon. As the Full Court in Repatriation Commission v Stoddart (2003) 134 FCR 392 said at page 399:
On its reasoning, an unloaded firearm pointed at a person, who did not know it was unloaded, could never be a threat. Human experience shows that many effective threats have been those which were not or could not be carried out.
55. It is therefore my view that the identifiable occurrence regarding the vehicle patrol, as described by Ms Keep, does satisfy one or more of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder with the circumstances of her operational service.
56. The second occurrence identified by Ms Keep as satisfying Instrument No 17 of 2007 was the bullying by Warrant Officer Green upon arrival and during the first 19 days of her operational service. Warrant Officer Green was the Warrant Officer Caterer with 3BASB between 25 September 1999 and 29 January 2000. According to Ms Keep, she did not go to East Timor at the same time as the other members of 3BASB due to a medical condition. When she eventually arrived in East Timor on 14 January 2000 she reported to Warrant Officer Green. According to Ms Keep, Warrant Officer Green greeted her with the following:
Where the fuck have you been? Why the fuck weren’t you here three weeks ago? We have been waiting for you, there is no point in you being here now. We have only got three weeks to go, what is going on?
When Ms Keep attempted to explain to Warrant Officer Green that she was held up in Townsville because of her medical condition, she said that he continued yelling and screaming and abusing her, saying:
I don’t fucking want excuses. Get out of my sight. Go with the other cooks and fuck off.
57. Ms Keep said that Warrant Officer Green’s tone of voice was very abrupt and very loud. She said that this had happened to her before; but on this occasion she was so overwhelmed to be in East Timor and excited at the same time, that to be greeted in that way made her feel belittled and hopeless. Ms Keep also said that she had regular contact with Warrant Officer Green, in fact every day, until 29 January 2000. She said that Warrant Officer Green continued to speak to her in the way described above and that he would refer to her as Cook. According to Ms Keep, if she was sitting down having a smoke he would berate her for not being in the kitchen and working, indicating that she was in charge of the shift. She said he kept yelling and swearing at her all the time. She said that he would not do it in front of other people, but that he would order her out the back where he then berated her, continuing to use coarse language. Ms Keep said that this continued for the two and a half weeks that she and Warrant Officer Green were both in East Timor.
58. Ms Keep said that she was very upset as she was trying to do the best job she could; and that no matter what she did, it was never good enough for Warrant Officer Green. She said that she always felt sick when spoken to the way that Warrant Officer Green spoke to her; and that she was upset, worried and felt helpless. Because he was her superior officer at 3BASB, she did not say anything to anybody else while she was East Timor as she knew he would soon be leaving and that she was going to stay on, attached to another unit. Ms Keep also said that Warrant Officer Green’s behaviour continued after she got back to Australia. In my opinion, Warrant Officer Green’s behaviour as described by Ms Keep does fit the definition of a category 2 stressor as defined in Instrument No 17 of 2007.
59. Ms Keep identified three further occurrences which she said evoked in her feelings of substantial distress. They involved:
(a)contact with local civilians who told her about families that they had lost to the militia and this made her feel helpless and very sad for them;
(b)seeing men, women and children begging for food because they were hungry and she felt helpless and sorry for the children. She was very upset, wanting to give them as much food as she could, but being unable to do so; and
(c)being shown a site where she was told the militia had committed murders and seeing what she believed were blood stains on a wall causing her to feel very scared, helpless and sick.
60. Ms Bornstein conceded that these three occurrences do not fit within the factors which must exist in order to establish a reasonable hypothesis under Instrument No 17 of 2007. Therefore, in accordance with the Full Court decision in Gorton, Ms Bornstein sought to have the significance of these occurrences determined under the superseded SoP concerning depressive disorder, namely Instrument Number 58 of 1998; and also under the SoP in force for generalised anxiety disorder, Instrument Number 1 of 2000. The factors relied on by Ms Keep in both of these SoPs are identical. Under Instrument Number 58 of 1998, depressive disorder can be related to relevant service rendered by the person where the person has experienced a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder. Under the generalised anxiety disorder SoP, the connection with service is made where the person experiences a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder. The phrase severe psychosocial stressor is defined in almost identical terms in both SoPs. In Instrument Number 1 of 2000, it 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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
The only difference in Instrument Number 58 of 1998 is that the definition refers to serious illness or injury as opposed to major illness or injury.
61. There is no question that there are objective and subjective elements involved in determining whether an identifiable occurrence fits within a definition. This was clearly stated by the Full Court in Stoddart and in Wooward. Further, Spender J in White v Repatriation Commission [2004] FCA 633 said, at paragraph 30:
In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
62. In White’s case, the Tribunal determined that the event relied on did not meet the objective requirements of an identifiable occurrence contemplated in the definition. Spender J said, at paragraph 32:
In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of “severe psychosocial stressor” has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a “serious psychosocial stressor”, means that the examples given in the definition of “severe psychosocial stressor” would be not only irrelevant and devoid of utility, but positively misleading.
63. It is clear from White, Stoddart and Woodward, that the Tribunal must take a two-step approach to determine whether an applicant has suffered a severe psychosocial stressor. The first step is to examine the identifiable occurrence relied upon; and to determine, objectively, whether the identifiable occurrence can be a serious psychosocial stressor taking into account the examples given in the definition. Therefore, the identifiable occurrences relied on by Ms Keep must, in order to fall within the definition of severe psychosocial stressor, be of a kind given in the examples. As Spender J said, they cannot be an occurrence of a trivial or innocuous nature. While not trivial, the identifiable occurrences referred to by Ms Keep regarding the stories told to her by local civilians regarding the actions of the militia; the men, the women and children begging for food; and observing an alleged murder site are not, in my opinion, of the same nature or gravity as the examples in the definition. I do not doubt that those occurrences are events which may be disturbing to certain individuals. However, I cannot accept that they are the type of events that, viewed objectively, fall within the general nature of events under the definition, and which are said to cause substantial distress. Therefore, the identified occurrences referred to as the contact with local civilians, begging for food and viewing the alleged murder site, are not hypotheses which fit within the template to be found in Instrument Number 58 of 1998 and Instrument Number 1 of 2000.
64. Finally, I must examine whether the incident which occurred in the course of Ms Keep’s vehicle patrol and the conduct of Warrant Officer Green towards her are identifiable occurrences which fall within the definition of severe psychosocial stressor for the purposes of Instrument Number 1 of 2000, the SoP dealing with generalised anxiety disorder. In my view, these events meet the objective requirements of an identifiable occurrence of the type contemplated in the definition. Furthermore, it is clear from Ms Keep’s evidence, that these two identifiable occurrences evoked feelings of substantial distress. I am therefore satisfied that the hypotheses raised as a consequence of these two identifiable occurrences are consistent with the template to be found in Instrument Number 1 of 2000.
65. In addition, there is evidence from Associate Professor Paoletti that anxiety and depression are related and that the two are often inseparable. Associate Professor Paoletti’s evidence was that depression is inherently accompanied by anxiety. He said that Ms Keep’s East Timor tour appears to have been crucial due to her exposure to traumatic events and which resulted in the setting in of more chronic symptoms and a reduction of capacity to emerge from the affected episodes. According to Dr Haik, the onset of Ms Keep’s depressive disorder was in about September 2000 when she was treated by Professor James. I am therefore satisfied that the clinical onset of anxiety occurred within the period stipulated in the SoP concerning generalised anxiety disorder.
THE FOURTH STEP ACCORDING TO DELEDIO – DEPRESSION AND ANXIETY
66. The final Deledio step requires the Tribunal to consider, under s 120(1) of the VE Act, whether it is satisfied beyond reasonable doubt that Ms Keep’s incapacity did not arise from a war-caused injury. If I am not so satisfied, Ms Keep’s claim must succeed. It is at this point that I am required to make findings of fact from the evidence before me, particularly in respect of the two identified occurrences which establish Ms Keep’s hypotheses, linking her operational service to depression and anxiety.
The vehicle patrol
67. There is a substantial amount of conflicting evidence regarding the vehicle patrol incident. Colonel S Kinloch, who commanded 3BASB between January 1999 and December 2000, gave evidence that he was with 3BASB in East Timor between 20 September 1999 and 28 January 2000. Colonel Kinloch said that 3BASB’s operations formally ceased on 19 January 2000, some five days after Ms Keep arrived in East Timor. According to Colonel Kinloch, the area occupied by 3BASB was 400 to 500 meters square or a few blocks in each direction. The defensive arrangements he put in place included fixed gun pits at the front gate and on an access road on the eastern perimeter, roving piquets around the 3BASB unit area inside the perimeter wire; patrols around 3BASB’s allocated tactical area of responsibility and a Ready Reaction Force which was permanently on high readiness. According to Colonel Kinloch, the Ready Reaction Force was not involved in the regular patrols around the perimeter of 3BASB’s area of operations. The Ready Reaction Force had a Landrover and some four, five or six soldiers. It was stationed near the front gate, ready to react if an incident occurred within 3BASB’s area of operations.
68. Ms Keep told the Tribunal that she was in charge of night patrols when she was in East Timor. When asked how many had she been on, she said that she had a strong recollection of at least one. According to Ms Keep, the night patrol was a vehicle patrol that was conducted outside the 3BASB compound, involving a total of six soldiers. She said that the patrol would take anywhere from 30 to 50 minutes to complete. Ms Keep said that, as the Corporal, she was in charge of the vehicle patrol on the night in question. She said there were five others in the vehicle with her. They were all privates. She then described the incident as I have outlined above.
69. There are some serious difficulties with Ms Keep’s account of this incident. At the hearing before the VRB, Ms Keep said that the patrol which she was leading was called the Reaction Force Team. While Colonel Kinloch said in evidence there was a Ready Reaction Force established as part of the defensive arrangements for 3BASB, and it did have a Landrover allocated to it, it did not conduct any routine patrols. Furthermore, Colonel Kinloch said that the routine patrols were foot patrols. However, Warrant Officer P Lawler, who was a sergeant with 3BASB in East Timor between September 1999 and late January 2000, said that there were some vehicle patrols and some foot patrols. Warrant Officer Lawler said the patrols would take approximately one hour and that they involved a four and a half kilometre area we had to walk around – patrol. He nevertheless maintained that some patrols were done by vehicle and he said it was a combination of the two.
70. Warrant Officer Lawler’s evidence, that there were some vehicle patrols and some foot patrols, conflicts with Colonel Kinloch’s evidence that there were only foot patrols, although the claimed duration of the patrols was approximately that described by Colonel Kinloch. Also, given that the 3BASB compound area was about 400 metres square, the distance around the perimeter according to Colonel Kinloch was somewhere in the vicinity of four kilometres. For that reason, if foot and vehicle patrols were conducted as Warrant Officer Lawler claims they were, it is highly unlikely that both patrols took the same length of time. In fact if a vehicle were used to drive the four kilometres around the perimeter of the 3BASB compound area, at an average speed of 20 kilometres per hour, that would take 12 minutes. Colonel Kinloch provided to the Tribunal a copy of the 3BASB patrol diary from 13 January 2000 to 19 January 2000. The patrol diary is a pro‑forma document which seems to have been completed by the patrol commander. The extracts from the diary indicate that there were, in that last week of 3BASB operations, either two or three patrols in every 24 hour period. The diary records the time the patrols left the compound and the time they returned. For that week, the duration of the patrols ranged between 40 and 70 minutes. It is therefore more likely than not that these were foot patrols and not patrols conducted using a vehicle.
71. Although Ms Keep was firm in her evidence that she lead a patrol, her name or signature does not appear on any of the entries in the patrol diary in evidence. The diary also provides for a report of any incidents to be entered. Every entry during that week is marked Nil or NTR (nothing to report). Furthermore, the comments in each report clearly indicate that the situation at that time was quiet, with little happening other than local residents going about their ordinary business.
72. It is possible that Ms Keep was a member of a patrol but not in charge of it. Warrant Officer Lawler said in evidence that he would not have been surprised if Ms Keep had done one or two patrols. However, Colonel Kinloch said that all of the patrol commanders between 14 and 19 January 2000 were corporals, and it was unlikely that Ms Keep would have been placed under the command of another corporal. Colonel Kinloch also explained that individuals were selected for patrol duties over a 24 hour period and were excused from their normal trade tasks for that time. Therefore, if Ms Keep had been appointed to patrolling duties, she would have been lost to the kitchen for those 24 hours. Given that the reinforcement request that lead to Ms Keep’s belated deployment to East Timor strongly stated that the kitchen could not function without a replacement corporal cook, Colonel Kinloch was of the view that it would be unlikely that she would have been released for patrol duties so soon after her arrival. Ms Keep’s own evidence supported this view. When Ms Keep was asked how she would describe conditions in the kitchen, she said that it was totally different to the work in Australia. She said that the hours were double those in Australia; and that sometimes she worked 15 to 16 hours in the kitchen with hardly any breaks. She said we were run off our feet all the time. She also said that in the first kitchen that she worked, she would be on breakfast shift every second or third day; so that she would be up at 4.00am and would work through until 8.00pm. Otherwise, she said that the work was between 6.00am until 8.00pm.
73. It seems to me that the weight of evidence is against a finding in Ms Keep’s favour. I am satisfied that patrols outside the perimeter of 3BASB between 14 and 19 January 2000 were conducted on foot and not by vehicle. There is no record of any vehicle patrol nor is there any record of the kind of incident reported by Ms Keep. The nature and duration of the patrols as recorded in the patrol diary accords with Colonel Kinloch’s evidence about those patrols. I am confident that, as the officer commanding 3BASB in East Timor, his evidence is accurate. Although Warrant Officer Lawler supports Ms Keep’s statement that vehicle patrols occurred outside the perimeter of 3BASB, even if that were correct, there is no evidence of a vehicle patrol during the period in question. Although Colonel Kinloch admitted that it is not unknown for paperwork to go astray and that he was unable to say from his own experience that vehicles were not used from time to time in undertaking patrols outside the perimeter, other than Ms Keep’s account of the events, there is no evidence which supports the incident which she says took place. Given that this is a relatively recent event and that there is no evidence that the patrol diary is incomplete, it is my opinion that the incident as recalled by Ms Keep did not occur.
74. I am strengthened in that opinion by the inconsistencies in Ms Keep’s accounts of the incident given to the VRB and to the Tribunal. In her evidence to the VRB she said that she was part of the Ready Reaction Force or, as she called it, the Reaction Force Team. That clearly was not her evidence before me. Furthermore, her evidence of long hours in the kitchen is inconsistent with the fact that she was available to conduct patrols in that first week. To use her on patrols would have defeated the very purpose of having Ms Keep deployed to East Timor. I am therefore satisfied beyond reasonable doubt that the events regarding this incident as described by Ms Keep did not occur. For that reason, I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that this identified occurrence can be linked to Ms Keep’s depression or anxiety.
Warrant Officer Green
75. I have already given an account of what Warrant Officer Green said to Ms Keep when she arrived in East Timor. Warrant Officer Green, in his written statement, said that he recalled when Ms Keep arrived in East Timor, he had to interview her for being responsible for not being deployable when she was needed which resulted in her delay arriving in Timor from Townsville. In his written statement Warrant Officer Green also said that Sergeant Lawler was present at that interview. However, Warrant Officer Lawler’s evidence does not indicate that he was present. Ms Keep said that the interview was solely with Warrant Officer Green and I accept that was the case. There is no evidence that any other person was present at that meeting.
76. Colonel Kinloch said in his written statement that 3BASB’s contribution to the operation in East Timor was limited to around 250 personnel. He said that he invited sub-unit commanders to nominate individuals to fill the structure that he designed, being a balance of ranks and trades so that the deployed part of the unit would be as operationally effective as possible. Colonel Kinloch was unable to say why Corporal Keep was not selected to deploy with the initial contingent but, because only about half of the unit could in any event be nominated, it meant that many fit and able individuals were, by necessity, excluded.
77. Colonel Kinloch said that on 22 December 1999 3BASB requested that Ms Keep be deployed to East Timor to replace another corporal cook who was to be returned to Australia for medical reasons. Colonel Kinloch also said that between the time of receiving the request for Ms Keep to be deployed to East Timor and her arrival there, the elapsed time would have been occupied by arranging the staffing and approving the reinforcement request; organising Ms Keep’s movement to Darwin where she undertook pre-deployment training for a week; and then making arrangements for her movement to Dili. Colonel Kinloch also said in oral evidence that obtaining a space on an aircraft to Dili was difficult because there were many people trying to get to East Timor and he considered that the delay between the request and her arrival was not significant.
78. The reasons given by Warrant Officer Green for the need to interview Ms Keep on arrival in East Timor and the nature of the discussion that he had with her is, in my opinion, extraordinary. According to Warrant Officer Green’s evidence, he had been asked a number of questions by senior officers as to why one of his corporals was not deployable. Warrant Officer Green said that he thought Ms Keep was deployable and he also said that Ms Keep also thought she was deployable. Nevertheless, there was delay in her arriving and he said that he had to question her about her medical status and why she was not deployable when she first came into the country. Warrant Officer Green said that he held Ms Keep responsible for not being deployable at the time when the request to have her deployed to East Timor was made. He also said that Ms Keep did not advise someone (I am not certain to whom that advice should have been directed) that she was not deployable. Warrant Officer Green agreed that enquiries were made with Townsville through Unit Operations and that he had been advised that there would be a delay because Ms Keep was not deployable. He was aware of this before she arrived in East Timor. Nevertheless, he continued to say that he held her responsible for not being deployable.
79. It is also clear from Ms Keep’s evidence that Warrant Officer Green questioned her about her medical condition. This is despite the fact that, as Ms Keep insisted, anything to do with her medical condition was confidential. Warrant Officer Green admitted to expressing a degree of irritation and frustration at not knowing Ms Keep’s medical status and said that he thought that she should know her own medical status as well as that of her soldiers, so that she was able to take care of herself and lead by example.
80. The reasons given by Warrant Officer Green for the interview he conducted with Ms Keep when she first arrived in East Timor are, to put it at its mildest, unconvincing. Warrant Officer Green maintained that a soldier was responsible for his or her level of physical fitness. But that is quite a different thing from suffering from a medical condition, unless of course there was a connection between the two. There is no suggestion that Ms Keep was not at an acceptable state of physical fitness to undergo deployment. She suffered from a medical condition, which had nothing whatsoever to do with her level of physical fitness, and for which she could not be held responsible. Colonel Kinloch made it clear in his evidence that a soldier could not be held responsible for not being deployable if that was due to a medical condition. That would also apply if there were a decision by somebody higher in the chain of command who was of the view that deployment was not appropriate, for whatever reasons. Despite that, Warrant Officer Green attempted to suggest that it was. Also, Warrant Officer Green said that he had been asked a number of questions by senior officers as to why Ms Keep was not deployable. He said that Ms Keep did not advise anyone that she was not deployable. However, as Colonel Kinloch explained, the individual soldier was not responsible for informing anybody of a change in his or her medical classification. Colonel Kinloch also said, if somebody’s medical classification changed, there are processes and systems in place to ensure that they are not deployed. In other words, the medical practitioner who made the medical classification would simply notify the unit of the soldier’s altered medical classification.
81. Colonel Kinloch also said that if Ms Keep’s classification was such that she should not have been deployed, he would have expected that it was up to the administrative chain of command in the responsible unit to pick that up. If that were the case, as I have no doubt it was, it makes no sense that senior officers would be asking a warrant officer why one of his corporals was not deployable.
82. In my view, the questions Warrant Officer Green asked Ms Keep on her arrival in East Timor were wholly inappropriate. They had nothing whatsoever to do with ascertaining the reasons for Ms Keep’s delayed deployment. That information would have been readily available from her service records. Furthermore, as Colonel Kinloch said on a number of occasions, she was not responsible for not being deployable as a result of a medical condition and she was also not responsible for any delays in physically being transported from Townsville to Dili.
83. The second serious concern I have about that interview concerns the language that Warrant Officer Green is said to have used. Not only did he seriously berate Ms Keep for her delay in being deployed to East Timor, but he did it in a way which was clearly belittling and unnecessary. Although Warrant Officer Green denied using the language that Ms Keep said he used in the course of the first interview and on other occasions when he spoke to her about her work performance, and he said that was not the way he normally spoke to other people under his command, he did admit that he may have used the word fuck now and again, possibly to emphasise the point that he was unhappy with the performance. Warrant Officer Green said that he gave praise where praise was due and that he did praise her for the quality of meals she presented in East Timor. However, he also said that it was his duty to counsel personnel where there was a lack of adequate performance. When Warrant Officer Green was asked whether he used the word fuck in conversation, he said occasionally. He continued to deny that he used the word fuck as an adjective in the sense of fucking in a conversation. He did agree that he spoke assertively to his staff.
84. Mr J Cathro, who provided a statement to the Tribunal and gave oral evidence, was a sergeant in the army. He was also deployed to East Timor, but not at the time that Ms Keep was there. Mr Cathro was Ms Keep’s Troop Sergeant prior to and following her return from East Timor. He also worked under Warrant Officer Green. In his written statement Mr Cathro said that in his opinion Warrant Officer Green was overbearing and attempted to put fear into other soldiers. Mr Cathro said that Warrant Officer Green would do this by swearing, belittling and giving out punishments for the most ridiculous things. He said that he witnessed this on many occasions. Mr Cathro also said that he knew other soldiers who had served with Ms Keep in Dili who also felt that they had been bastardised by Warrant Officer Green, but they were still too frightened to talk about it.
85. Mr Cathro was present, although outside the office of Warrant Officer Green, when the incident occurred in July 2000, which forms part of the second depression hypothesis. Mr Cathro said that Ms Keep came out of the room and spoke to him for reference and guidance. He said that he couldn’t help but hear the conversation that took place in Warrant Officer Green’s office. Mr Cathro was taken to Warrant Officer Green’s written statement regarding the incident and he was asked if he agreed with what Warrant Officer Green had said. He said he did not completely agree with it. Mr Cathro’s recollection of what Warrant Officer Green said is:
Fucking you ruined me computer, I’ve lost all this fucking work, you know, it’s suppose to have been in by, you know, later on in the day.
86. Mr Cathro said Warrant Officer Green became irate and that he was swearing at Ms Keep, saying that she was incompetent and that she shouldn’t hold the rank she held. Mr Cathro also said that this happened on many occasions and that the incident to which he was referring to wasn’t merely a one off. Mr Cathro also said in cross-examination that his recollection of the incident was reinforced by the fact that he wrote down what was said in his diary some ten minutes after the event.
87. Warrant Officer Lawler, who was also present when the July 2000 incident took place, said that at no time did Warrant Officer Green use profanities or coarse language. In cross-examination, Warrant Officer Lawler denied that Warrant Officer Green swore in conversation or that he used the word fuck. When the question was put to him again, he changed his answer to say that he was sure that at sometime Warrant Officer Green would have used the word fuck like most people.
88. In my view, the weight of evidence indicates that Warrant Officer Green did use coarse and inappropriate language frequently. He disclosed an obvious reluctance to admit to that fact; although, when pressed, he accepted that he occasionally used coarse language. Although I accept that Mr Cathro did not get on with Warrant Officer Green, I see no reason why his account of Warrant Officer Green’s use of language would be incorrect. In fact, he made a diary note of it. Following the incident in July 2000, a complaint was made by Ms Keep against Warrant Officer Green and that was confirmed by Colonel Kinloch. Although Warrant Officer Green agreed that he had a number of discussions with Ms Keep regarding her performance while in East Timor, he continued to deny that he used course language or that his conduct was inappropriate. However, I prefer the evidence given by Ms Keep regarding this behaviour. His questions to Ms Keep when she first arrived in Dili were inappropriate and her medical condition and reasons for not being deployed at an earlier date were not the reason he confronted her. Further, his conduct towards Ms Keep in East Timor could not simply be put down to counselling. In my view, the evidence points squarely to the fact that Warrant Officer Green did bully or harass Ms Keep while she was in Dili.
89. As I have mentioned above, Ms Keep’s medical records indicate that in April 2000, which was shortly after her return from East Timor (taking into account that she took two months leave immediately upon returning to Australia), she sought assistance from Ms Drew, a psychologist. Ms Drew noted in July 2000 that Ms Keep was receiving regular sessions of cognitive therapy for work stress and relationship problems. In fact, Ms Keep had supportive counselling as early as May 1999, while on exercise. Although the psychological referral record does not make it clear what her problem was at that stage, her annual report for the year ending 1 November 1999 sheds some light on that. Her report indicates that when working within a barracks environment, Ms Keep produced work of an above-average tradesperson. However, when in the field environment, she displayed a lack of confidence; and she challenged the authority of the Senior Non-Commissioned Officers by voicing her opinion inappropriately when given arduous tasks set by higher command. The report stated that Ms Keep needed to show greater loyalty to her superiors in a field environment, as her obstructionist attitude undermined team cohesion. Prior to that report, her annual reports indicated that her overall performance was very good, above the standard required for her rank. The assessing officer for the 1999 report was Warrant Officer Green. It is reasonable to conclude that Ms Keep started to have problems with Warrant Officer Green as early as May 1999. It is also reasonable to infer that when Ms Drew referred to work stress, her performance in the field as assessed by Warrant Officer Green was likely to have been the cause. Ms Drew also said in her report of 24 July 2000 that Ms Keep was not psychologically ready to go into the field where she would be working with her Warrant Officer. As well as work stress, Ms Drew also noted that Ms Keep had a range of other personal relationship problems. Ms Keep’s Medical Board Examination dated 19 June 2000 indicates that she was undergoing psychological counselling for depression and that she was taking anti-depressants.
90. Professor James, a psychiatrist who examined Ms Keep in September 2000, noted that Ms Keep had long-standing dysphoric symptomology but that she coped well in the army and that she had had mostly very good reports over nine years. Professor James noted that Ms Keep suffered an exacerbation of depressed affect over the previous two years and particularly in recent months. I have no doubt that the reference to the recent months is a reference to the incident with Warrant Officer Green in July 2000. Dr Dawood diagnosed Ms Keep as suffering from major depressive disorder in December 2000.
91. Dr Haik, who examined Ms Keep on 23 June 2005, recounted her medical history accurately. Dr Haik noted her personal and work problems and said that the combination of these many stressful events, particularly given her unstable background, could easily explain her episodic depressive feelings in 2000 requiring counselling and later anti-depressant medication. Dr Haik also, correctly in my opinion, noted that although it was not clear why there appears to be a total absence of mention in any notes of Ms Keep’s harassment by her Warrant Officer until her claim in 2004, that might well be part of her work stress referred to by Ms Drew. Dr Haik was also of the view that there was no doubt that Ms Keep had suffered several episodes of major depressive disorder. Dr Haik said that Ms Keep’s family background was likely to have predisposed Ms Keep to depression and that her marriage breakdown in 1998, the verbal harassment from 1999, an abusive relationship in 2000, as well as falling pregnant and undergoing a termination in September 2000 had all contributed to her depressive decline. Dr Haik noted that the counselling Ms Keep received was obviously not sufficient to remove her depressive and obsessive symptoms and that anti-depressant medication prescribed by Professor James was imperative.
92. Associate Professor Paoletti, who examined Ms Keep on 16 March 2006, said that Ms Keep exhibited a fair amount of rancour about events when she was in the army relating to verbal abuse by Warrant Officer Green. According to Associate Professor Paoletti, Ms Keep’s East Timor tour appears to have been crucial in the creation of a quantum shift, because of the abuse she allegedly received by Warrant Officer Green and because of the exposure to the traumatic events which she had recited; which resulted in the setting in of more chronic symptoms and the reduction of capacity to emerge from the affective episodes.
93. Associate Professor Paoletti was also of the opinion that chronic verbal abuse by Warrant Officer Green appears to have undermined Ms Keep’s self-esteem and confidence. He noted that Ms Keep had gone so far as to resign from the Army to avoid ongoing exposure to Warrant Officer Green, but had managed to recover functionally after he had left. Associate Professor Paoletti also opined that the ongoing verbal abuse by Warrant Officer Green was crucial in the aggravation/recurrence of her condition (depressive disorder).
94. The medical evidence of Dr Haik and Associate Professor Paoletti, together with the other medical reports to which I have referred, make it quite clear that Ms Keep not only suffered from stress as a consequence of Warrant Officer Green’s conduct, but that immediately after her return from East Timor, she made it clear that she was suffering from stress as a result of her work. This was brought to a conclusion following Warrant Officer Green’s confrontation with Ms Keep in July 2000 and I have no doubt that this incident simply added fuel to the fire. There is no doubt that depression may be caused by more than one event or experience, all of which contribute to the development of depression. Dr Haik made that clear. Therefore, I am of the view that Ms Keep’s depression and anxiety condition was a war-caused injury as I cannot be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Her anxiety and depression were contributed to in a material degree by, or were aggravated by, her operational service in East Timor.
THE FOURTH STEP ACCORDING TO DELEDIO – PATHOLOGICAL GAMBLING
95. There can be no doubt that Ms Keep has suffered from a long standing pathological gambling problem. It is well recorded in her service medical notes. A psychological referral record made on 14 May 1999 states that she attended Gamblers Anonymous in 1998 and that she last gambled in March 1998. Dr George, a psychiatrist who examined her on 27 May 2003, reported that Ms Keep had a gambling habit which began in her late teens and, apart from a few short breaks, in which she has engaged continuously. Ms Keep’s evidence was that when she returned from East Timor, her gambling got out of control. When asked what form her gambling took, she said everything. She said she gambled to escape and that she continued to gamble on and off for several years after her return from East Timor. There was no evidence to the contrary. Dr Haik reported that Ms Keep had long term features of pathological gambling which appeared to be a means of escaping a dysphoric mood described by DSM-IV as feelings of helplessness, guilt, anxiety and depression. That is, in fact, one of the diagnostic criteria for pathological gambling as set out in the DSM-IV.
96. As the medical evidence clearly points to the fact that Ms Keep suffers from depression and anxiety and has been generally described as suffering from a dysphoric mood, there is a clear link between her pathological gambling and depression and anxiety. Given that I am satisfied that Ms Keep’s anxiety and depression was contributed to in a material way or aggravated by her service in East Timor, it follows that her pathological gambling was also contributed to in a material way or aggravated by that service. Therefore, I am satisfied that Ms Keep’s pathological gambling is war- caused within the meaning of the VE Act as I cannot be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
CONCLUSION
97. I am satisfied that Ms Keep’s anxiety and depression, and her pathological gambling, were either contributed to in a material degree by, or were aggravated by, her eligible war service and should therefore be taken to be war-caused for the purposes of the VE Act.
98. The decision of the VRB made on 14 February 2005 should be set aside and this matter remitted to the Commission for assessment of pension payable to Ms Keep.
I certify that the ninety-eight [98] preceding paragraphs are a true copy of the reasons for the decision herein of:
Egon Fice, Member
Signed: Ursula NoyéClerk
Dates of Hearing: 24 October 2006, 22-23 February
2007and 22 March 2007
Date of Decision: 6 June 2007
Counsel for the Applicant: Ms J Bornstein
Solicitor for the Applicant: KCI Lawyers
Counsel for the Respondent: Mr G Purcell
Solicitor for the Respondent: Department of Veterans’ Affairs
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